Clare v Australian Community Pharmacy Authority

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FEDERAL COURT OF AUSTRALIA

Clare v Australian Community Pharmacy Authority [2015] FCA 653

Citation: Clare v Australian Community Pharmacy Authority [2015] FCA 653
Appeal from: Clare v Australian Community Pharmacy Authority [2014] AATA 932
Parties: JULIA CLARE v AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
File number: QUD 14 of 2015
Judge: REEVES J
Date of judgment: 30 June 2015
Catchwords:

HEALTH LAW – pharmacists – requirements for approval to relocate pharmacy – construction of the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 – whether proposed premises are in the same town as the existing premises – consideration of the meaning of “same town” – consideration of construction of item 312(b)(ii) of Part 1 of Schedule 3 to the Rules – consideration of the general purpose of the Pharmaceutical Benefits Scheme

ADMINISTRATIVE LAW – appeal from decision of the Administrative Appeals Tribunal – consideration of requirement to reach the correct or preferable decision

Legislation: National Health Act 1953 (Cth)
National Health (Australian Community Pharmacy Authority Rules) Determination 2011
Cases cited: Bushell v Repatriation Commission (1992) 175 CLR 408
Clare v Australian Community Pharmacy Authority [2014] AATA 932
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [2012] HCA 55
Grant v Repatriation Commission (1999) 57 ALD 1, [1999] FCA 1629
Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273
Yu v Minister for Health (No 2) (2013) 216 FCR 188, [2013] FCA 367
Date of hearing: 15 April 2015
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 77
Counsel for the Appellant: Mr J Horton QC
Solicitor for the Appellant: Bennett & Philp
Counsel for the Respondent: Mr A Dillon
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 14 of 2015
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

JULIA CLARE
Appellant
AND:

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondent

JUDGE:

REEVES J

DATE OF ORDER:

30 JUNE 2015

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the respondent’s costs of and incidental to the appeal.

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


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 14 of 2015
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

JULIA CLARE
Appellant
AND:

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondent

JUDGE:

REEVES J

DATE:

30 JUNE 2015

PLACE:

BRISBANE

REASONS FOR JUDGMENT

MS CLARE SEEKS TO RELOCATE HER PHARMACY

  1. This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal).  For the reasons which follow, the appeal will be dismissed.  It arises in the following circumstances.

  2. Ms Clare is a pharmacist and, as such, she holds an approval to dispense pharmaceuticals from premises located in Broadbeach Waters on the Gold Coast, Queensland.  She obtained this approval in February 2014 following an application she made to the Secretary of the Department of Health (the Secretary) under Part VII of the National…

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Details
Case
[2015] FCA 653
Decision Date

CaseChat Overview and Summary

The case of Clare v Australian Community Pharmacy Authority involved a pharmacist, Ms Clare, who sought to relocate her pharmacy premises. The Australian Community Pharmacy Authority (ACPA) denied her application, and the matter was appealed to the Federal Court. The primary legal issues were whether Ms Clare's existing pharmacy premises were in the "same town" as the proposed premises, and whether item 312(b)(ii) of Part 1 of Schedule 3 to the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 applied to her application.

The court began by examining the meaning of "same town" as used in item 312(b)(ii). The Tribunal had previously defined "town" based on the Macquarie Dictionary's definition of a "distinct densely populated area of considerable size." The court agreed with the Tribunal's interpretation, concluding that the two premises were in the same town, even though they were in different suburbs, because they were in the same postcode and within the same "distinct densely populated area." The court also considered item 312(b)(ii) and noted that Ms Clare's application did not meet the requirements, as the proposed premises were not in the same town as the existing premises. Therefore, the court upheld the ACPA's decision to deny Ms Clare's application.

The Federal Court dismissed the appeal and ordered that Ms Clare pay the ACPA's costs of and incidental to the appeal. This decision underscored the importance of adhering to the regulatory framework governing pharmacy relocations under the Pharmaceutical Benefits Scheme, ensuring that pharmacy distribution remains aligned with the scheme's objectives of equitable access to healthcare services.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, two issues arise for consideration in this appeal. The first is whether Ms Clare’s existing pharmacy premises are in the “same town” as the proposed premises; and the second is whether, in any event, item 312(b)(ii) of Part 1 of Schedule 3 to the 2011 Rules applied to Ms Clare’s application.THE TRIBUNAL’S DECISION Before turning to consider these issues, it is convenient to summarise the Tribunal’s decision on these two issues. The kernel of it is set out hereunder.The “same town” issue The Tribunal member began by noting that item 312(b)(ii) was the key provision in this case and he recorded that Ms Clare’s position was that that item allowed for the approval of a relocation application if “the proposed premises are in the same town as the existing premises”. Apart from s 5(3) of the 2011 Rules, the Tribunal member observed that the expression “town” was not otherwise defined in those Rules. Section 5(3) provides:If proposed premises are required to be in the same town as an existing premises, the proposed premises are taken to be in the same town if they are located in the same town and postcode as the existing premises. In the absence of a definition of the expression “town”, the Tribunal member decided to rely upon the following definition in the Macquarie Dictionary:i.a small group of houses and other buildings thought of as a place, and given a name: *the word ‘town’ is employed with generosity in Australia – WA Winter-Irving, 1977.ii.a distinct densely populated area of considerable size, having some degree of self-government.iii.(British) a group of buildings, larger than a village and administratively more independent, but smaller than a city. With reference to this definition, the Tribunal member considered that “[t]he legislative scheme … suggests the second meaning is appropriate here”, noting that “[t]he scheme regulates the distribution of pharmacies throughout the community”. With apparent reference to the first and second meanings above, the Tribunal member observed that, while the concept of “a catchment area” (used in the 2006 version of the 2011 Rules) had been abandoned (at [12]):… pharmacies are still allocated with reference to geographical areas that are somewhat larger than “a small group of houses and other buildings”. The focus tends to be on “distinct densely populated areas of considerable size” so that the pharmacy will have access to a large enough population base to be viable. Accordingly, the Tribunal member concluded that the expression the “same town” meant the same “distinct densely populated area”. On that basis, he concluded that Ms Clare’s two sets of premises fell within that meaning. He said (at [13]):… I do not need to precisely delineate the boundaries of the town where the pharmacy is located. All I have to decide is whether the proposed premises are sufficiently close to the existing premises to justify saying they are both in the same town, even if they are not in the same suburb. As it happens, I am satisfied both premises are in the same distinct densely populated area. I accept they are in the same town, and they are also in the same postcode.The item 312(b)(ii) issue

Ratio Decidendi

Legal Principle Established

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