Clark and Australian Community Pharmacy Authority
[2011] AATA 246
•13 April 2011
CATCHWORDS - PRACTICE AND PROCEDURE – applicants wanted to discontinue or withdraw applications and lodged documents noting their intent – characterisation of documents as seeking order for dismissal or notices of discontinuance or withdrawal – on same day applicants lodged further applications in respect of fresh decisions – whether each must pay a further application fee – determined by whether first applications remained current for each when further applications lodged so that there were two for each or whether proper characterisation of documents is that of notices of discontinuance or withdrawal so that only the second application was current – decision for District Registrar and not for Tribunal.
Re Ha and Australian Community Pharmacy Authority [2009] AATA 305; (2009) 49 AAR 549
Re Kong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 552; 40 AAR 455
Administrative Appeals Tribunal Act 1975 ss 29A(1), 42A(1), 42A(1A), 42A(1B), 70(2)(a)(i)
Administrative Appeals Tribunal Regulations 1976 rr 19, 19(5)(a) and (b), 19(8)(b)
National Health Act 1953 ss 90, 99L
National Health (Australian Community Pharmacy Authority Rules) Determination 2006 r 108
DECISION AND REASONS FOR DECISION [2011] AATA 246
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2011/1300
GENERAL ADMINISTRATIVE DIVISION )
Re:BRETT CLARK
Applicant
And:AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondent
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2011/1299
GENERAL ADMINISTRATIVE DIVISION )
Re:FABIAN TASCONE
Applicant
And:AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 13 April 2011
Decision:The Tribunal notes that it is for the District Registrar to decide whether each applicant must pay a further application fee of $777 in respect of his application lodged on 8 April 2011.
S A Forgie
Deputy President
Timing can be everything when an applicant wants to make a second application but not proceed with the first and yet pay only one application fee in respect of both. Such situations are not common but they arise from time to time when the Tribunal is asked to review, for example, decisions made by the Australian Community Pharmacy Authority (ACPA) regarding applications for approval to supply pharmaceutical benefits under s 90 of the National Health Act 1953 (NH Act). Both Mr Tascone and Mr Clark have received adverse decisions on their applications to ACPA. If the District Registrar is satisfied that Mr Tascone and Mr Clark lodged their second applications for review of ACPA’s second decisions before each discontinued his first application and if she is of the opinion that the two applications might conveniently be heard together at the same time, she may order that only one fee is payable for the two applications lodged by each of them. If she is satisfied that Mr Tascone and Mr Clark each withdrew their first application before lodging their second, each must pay another application fee of $777 and is not entitled to a refund of the first application fee already paid.
THE FIRST DECISIONS
In a letter dated 22 December 2010, ACPA advised Mr Tascone that it was not satisfied that his application for approval under s 90 of the NH Act met the requirements of Rule 108 set out in National Health (Australian Community Pharmacy Authority Rules) Determination 2006 (Rules) made under s 99L of the NH Act and as amended from time to time. Therefore, it had made a recommendation to the Secretary of the Department of Health and Ageing (Secretary) that she not approve Mr Tascone’s application. ACPA made the same decision and recommendation and for the same reason when it considered Mr Clark’s application in relation to different premises on 17 December 2010. The grounds on which ACPA reached its decision differed for different considerations applied to each of the premises for which approval was sought.
THE FIRST APPLICATIONS
Mr Tascone and Mr Clark each lodged an application dated 23 December 2010 with the Tribunal. Each sought review of ACPA’s decision in relation to his application to it for approval. Neither application has been stamped with the date on which it was received in the Tribunal but each file contains a copy of the receipt given upon payment of the application fee. Each receipt is dated 24 December 2010. If an application fee had not been payable and if there had been a question whether the application had been lodged within time or not, the omission of a date stamp might have been an issue despite the record in the Tribunal’s computerised case management system that each was received on 24 December 2010. As it is, an application fee was payable. Therefore, in view of s 29A(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act), neither application was taken to be made until the application fee was paid. That meant that they were taken to be made on 24 December 2010.[1]
[1] Section 29A of the AAT Act provides:
THE SECOND DECISIONS
On 25 March 2011, ACPA again considered the applications for approval that Mr Tascone and Mr Clark had made to it and reached the same decision. ACPA notified each of them of its decision in letters dated 4 April 2011.
THE SECOND APPLICATIONS
In applications dated 8 April 2011, Mr Tascone and Mr Clark each sought review of ACPA’s decision to refuse his application. They are not stamped by the Registry with the date of their lodgement and there appears to be no covering letter or other accompanying document that does so.
ONLY ONE FEE MAY BE PAYABLE IF MORE THAN ONE APPLICATION
The Administrative Appeals Tribunal Regulations 1976 (Regulations) set out a fee regime in rr 19 to 19B.[2] Only r 19 concerns applications of the sort made by Mr Tascone and Mr Clark. There is no question that an application fee of $777 is payable unless r 19(5) applies. It provides:
“If 2 or more applications:
(a)relate to the same applicant; and
(b)may, in the opinion of the Registrar, a District Registrar or a Deputy Registrar, be conveniently heard before the Tribunal at the same time;
the Registrar, a District Registrar or a Deputy Registrar may order that only 1 fee is payable for those applications.”
[2] Power to do so is given by s 70(2)(a) of the AAT Act
In these matters, the District Registrar may well be satisfied that rr 19(5)(a) and (b) have been met. The more difficult issue will be whether there are two or more applications for each of Mr Tascone and Mr Clark. That depends on what has happened in relation to their first applications and whether they were still taken to be before the Tribunal when they lodged their second applications.
MINUTES OF PROPOSED CONSENT ORDERS
Both Mr Tascone and Mr Clark reached an agreement with ACPA through its solicitors, the Australian Government Solicitor (AGS) regarding the disposition of their first applications. They agreed that each would discontinue those applications and make a fresh application in relation to the second decision made by ACPA. To implement their agreement, Mr Tascone and Mr Clark each signed a minute of proposed consent orders. The minute was also signed on behalf of AGS and asked the Tribunal to order by consent that the proceeding be discontinued by the Applicant and that there be no order as to costs.[3]
[3] Except in circumstances provided for by Parliament in relation to the review of specific decisions, the Tribunal does not have power to order that one party must pay the costs of another. Parliament has not done so in relation to the review of decisions by ACPA under the NH Act.
The form in which the order was sought raises a question whether the parties were asking for an order under s 42A(1) of the AAT Act or whether Mr Tascone and Mr Clark were notifying the Tribunal that their applications were discontinued under s 42A(1A). The two are different. Section 42A(1)[4] turns on an order made by the Tribunal with the consent of the parties. The Tribunal may, with the consent of the parties, make an order dismissing an application. It may not make an order for discontinuance. Section 42A(1A)[5] turns on the action of an applicant and is independent of any order by the Tribunal. The applicant’s action is to notify the Tribunal that the application is discontinued.
[4] “Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.”
[5] “A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.”
With one exception, the practical outcome of an order under s 42A(1) and an applicant’s discontinuing or withdrawing an application under s 42A(1A) is the same. That comes about because s 42A(1B)[6] provides that, if an applicant chooses to act under s 42A(1A), the Tribunal is taken to have dismissed the application. An applicant whose application has been dismissed by whatever means is not entitled to a refund of any application fee or prescribed fee that has been paid.[7]
[6] “If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.”
[7] Regulation 19(8) of the AAT Regulations is relevant in relation to a refund. As there is no question that a fee was payable when Mr Tascone and Mr Clark lodged their first application and that it was the appropriate fee, only r 19(8)(b) is relevant. It provides:
The one exception relates to timing. If an applicant chooses to lodge a written notification to the effect that the application is discontinued or withdrawn, that notification takes effect immediately upon lodgement. Section 42A(1A) is, for all practical purposes, a self-executing provision once that notification has been lodged. Section 42A(1), though, is not. The parties’ consent to dismissal must be given before the Tribunal may make an order dismissing the application but there is a necessary separation between the two. If consent is given orally during the hearing of a proceeding, the order will usually follow on the heels of the consent. If it is given in writing and lodged with the Tribunal outside the hearing of a proceeding, there will necessarily be a delay between lodgement and any order the Tribunal may choose to make. Any written order made by the Tribunal should reflect the day on which it is made and that may be on a day that is later than the day of lodgement. It will necessarily be at a time later than the lodgement even if on the same day.
After calling the parties, the Tribunal’s Registry treated the document as a notice of discontinuance under s 42A(1A) and closed the files relating to the applications for review of the first decisions. As the covering letter was date stamped 8 April 2011, that would be the date on which the first applications are taken to have been dismissed.
A MATTER FOR THE DISTRICT REGISTRAR
As I have already noted, neither of the second applications lodged by Mr Tascone and Mr Clark was date stamped on being lodged in the Tribunal’s Registry. It could be taken that each was lodged on 8 April 2011 for each is dated that day and the notices given to ACPA under s 29 of the AAT Act are also dated that day. Whether they were lodged before the documents that have been taken to be notices of discontinuance, I must leave to her. If they were, Mr Tascone and Mr Clark would each have had two applications and might be thought to meet the criteria of r 19(5). If they were not, neither Mr Tascone nor Mr Clark would have had two applications and so cannot meet them and must pay a second application fee.
I certify that the thirteen preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Leah Berardi, Associate
Date of Decision 13 April 2011
Solicitor for Applicant Mr Hamish Rotstein
Rotstein Lockwood Reddy
Solicitor for the Respondent Ms Rosemarie Sebastian-Pilai
Legal Services Branch, Department of Health and Ageing
“(1) Subject to subsection (2), an application to the Tribunal, whether for a review of a decision or otherwise, is not taken to be made unless the prescribed fee (if any) in respect of the application is paid.
(2) An application in respect of which a fee is waived under the regulations, whether at the time of lodgment or later, is taken to be made at the time it is lodged with the Tribunal.”
“A person is entitled to a refund (the refund amount), if:
(a) …
(b) the Tribunal certifies that proceedings have terminated in a manner favourable to the applicant.”
In earlier cases, I have considered the meaning of the expression “terminated in a manner favourable to the applicant”. I have not changed my mind and refer to my reasons in Re Ha and Australian Community Pharmacy Authority [2009] AATA 305; (2009) 49 AAR 549 at [31]-[32]; 556-557:
“31. As I said in an earlier case of Re Kong and Minister for Immigration and Multicultural and Indigenous Affairs,[[2005] AATA 552; 40 AAR 455 at [14]; 459] it seems to me that the question that Toohey J had to consider in Donovan v Repatriation Commission was a slightly different question from that which I am required to answer in the context of r 19(7) of the Regulations:
‘… I do not have to consider whether an applicant has had a favourable answer to the application so much as whether the proceedings terminated in a manner favourable to that applicant. Perhaps the result is the same but it seems to me that whether they have terminated in that way depends on whether they have terminated in a manner that is advantageous or helpful to the applicant. Putting that another way, they have come to an end and have done so in a way that advantages or helps the applicant. Advantaging or being helpful, and so favouring an applicant, does not equate with total success. Some advantage or help is sufficient.’[7]
32. The focus of the question that must be asked under r 19(7) is upon the outcome of the termination. I feel that I would be hard pressed to conclude that a withdrawal of an application could be regarded as a conclusion to an application that is favourable to an applicant. It may be that there are arrangements made between the parties that are satisfactory and even favourable to an applicant but it is difficult to say that the application that is the proceeding has terminated in a manner favourable to him or her. What happens between the parties beyond the scope of the application is just that: beyond its scope and so not relevant in determining whether the application has terminated in a manner favourable to the applicant.”
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