FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Horsfall [2010] FCA 443
Citation: Commonwealth of Australia v Horsfall [2010] FCA 443 Appeal from: Horsfall and Australian Community Pharmacy and Anor [2009] AATA 811 Parties: COMMONWEALTH OF AUSTRALIA v SIMON HORSFALL, KATHLEEN HORSFALL, PAMELA CARTER and SECRETARY OF THE DEPARTMENT OF HEALTH AND AGEING File number: NSD 1319 of 2009 Judge: KATZMANN J Date of judgment: 7 May 2010 Corrigendum: 12 October 2010 Catchwords: ADMINISTRATIVE LAW ––Administrative Appeals Tribunal – decision of the Australian Community Pharmacy Authority to recommend that an application for approval to supply pharmaceutical benefits – whether Tribunal to determine what was correct or preferable decision as at the date of its own decision or an earlier time – whether Tribunal has discretion to disregard change in circumstances after the date of the original decision Legislation: Administrative Appeals Tribunal Act 1975 (Cth), 43(1), 44
National Health Act 1953 (Cth), ss 90, 99J, 99K, 99L
National Health (Australian Community Pharmacy Authority Rules) Determination 2006
National Health (Australian Community Pharmacy Authority Rules) Amendment Determination 2007 (No. 1)Cases cited: Civil Aviation Safety Authority v Allan [2001] FCA 1064; (2001) 114 FCR 14 cited
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 cited
Friendly Society Medical Association Ltd and Australian Community Pharmacy Authority, Re [2008] AATA 1055; (2008) 106 ALD 635
Jebb v Repatriation Commission (1988) 80 ALR 329 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 appliedDate of hearing: 26 March 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 109 Counsel for the Applicant/
Fourth Respondent:Ms R Henderson Solicitor for the Applicant/
Fourth Respondent:Australian Government Solicitor Counsel for the First and Second Respondents: Mr S Burley and Mr J Gibson Solicitor for the First and Second Respondents: Guild Legal Limited No appearance for the Third Respondent. FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Horsfall [2010] FCA 443
CORRIGENDUM
1.In the fourth sentence of paragraph 7 replace “means” with “is”.
2.In the first sentence of paragraph 9 delete the first instance of the word “the”.
3.In paragraph 13 delete the word “equally”.
4.In paragraph 27 change the opening words “However, as the letter from Medicare itself made clear” to “However, as Medicare’s letter itself made clear”.
5.In the second sentence of paragraph 34 replace “s 10” with “s 9”.
6.In the second sentence of paragraph 40 replace “s 9” with “s 10”.
7.In paragraph 50 replace the first word “It” with “She”.
8.In the ninth sentence of paragraph 77 replace “section 8” with “s 6(2)”.
9.In the fourth sentence of paragraph 78 replace “our” with “out”.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 12 October 2010
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
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Details
- Case
- [2010] FCA 443
- Decision Date
CaseChat Overview and Summary
The case before the High Court involved a dispute between the Commonwealth of Australia, represented by the Australian Community Pharmacy Authority (ACPA), and Mr. and Mrs. Horsfall, who sought approval to supply pharmaceutical benefits from their proposed premises. The core issue revolved around whether the Administrative Appeals Tribunal (AAT) should determine the correctness or preferability of the ACPA’s decision as it stood at the time of the tribunal’s decision or as it existed at an earlier point in time. Additionally, the court needed to determine whether the AAT had the discretion to disregard changes in circumstances that occurred after the original decision was made.
The legal issues before the court were primarily centred on the scope of the AAT's review powers under the Administrative Appeals Tribunal Act and the interpretation of the relevant legislative provisions. The primary contention was whether the AAT could consider events and circumstances that arose after the ACPA made its initial decision, specifically whether the AAT was confined to reviewing the decision as it existed at the time of the ACPA’s recommendation or if it could consider the subsequent developments, such as the ACPA recommending the approval of another pharmacy application.
The court resolved that the AAT’s review was indeed limited to the state of affairs existing at the time of the ACPA’s original decision. The High Court emphasised that the AAT’s jurisdiction to review administrative decisions is circumscribed by the legislative framework and the nature of the decision being reviewed. In this instance, the High Court found that the AAT was not empowered to disregard subsequent changes in circumstances that had occurred after the ACPA’s initial decision. The court highlighted that the AAT’s role is to review the decision as it stood at the time it was made, and any subsequent developments do not fall within the scope of the tribunal’s review powers unless explicitly provided for by the relevant legislation.
As a result of this ruling, the appeal was allowed, and the AAT's decision made on 22 October 2009 was set aside. The High Court affirmed the ACPA’s decision notified to the Horsfalls on 2 September 2008, effectively disallowing their application for approval. Additionally, the court ordered that the Horsfalls pay the applicant's costs.
The legal issues before the court were primarily centred on the scope of the AAT's review powers under the Administrative Appeals Tribunal Act and the interpretation of the relevant legislative provisions. The primary contention was whether the AAT could consider events and circumstances that arose after the ACPA made its initial decision, specifically whether the AAT was confined to reviewing the decision as it existed at the time of the ACPA’s recommendation or if it could consider the subsequent developments, such as the ACPA recommending the approval of another pharmacy application.
The court resolved that the AAT’s review was indeed limited to the state of affairs existing at the time of the ACPA’s original decision. The High Court emphasised that the AAT’s jurisdiction to review administrative decisions is circumscribed by the legislative framework and the nature of the decision being reviewed. In this instance, the High Court found that the AAT was not empowered to disregard subsequent changes in circumstances that had occurred after the ACPA’s initial decision. The court highlighted that the AAT’s role is to review the decision as it stood at the time it was made, and any subsequent developments do not fall within the scope of the tribunal’s review powers unless explicitly provided for by the relevant legislation.
As a result of this ruling, the appeal was allowed, and the AAT's decision made on 22 October 2009 was set aside. The High Court affirmed the ACPA’s decision notified to the Horsfalls on 2 September 2008, effectively disallowing their application for approval. Additionally, the court ordered that the Horsfalls pay the applicant's costs.
Orders
Orders of the court
1. The appeal is allowed.
2. The decision made by the Administrative Appeals Tribunal on 22 October 2009 in proceeding 2008/4437 is set aside.
3. In place of the Tribunal’s decision, the decision of the Australian Community Pharmacy Authority notified to the first and second respondents on 2 September 2008 is affirmed.
4. The first and second respondents pay the applicant’s costs.
Note:
Background
Background to the litigation
The purpose of the amendments to paragraphs (a) and (b) is clear. Relevantly, paragraph (a) is designed to ensure that pharmacists making applications to the Authority have complied with it before lodging an application with the Authority, rather than lodging an application and seeking to comply with it before the Authority comes to consider the application. The amendments do not assist the Horsfalls in this appeal. Factual background I now turn to the important facts in this case, which are uncontroversial. On 10 July 2008 the Horsfalls lodged their application for approval under s 90 of the National Health Act to supply pharmaceutical benefits from proposed premises at 9 High Street, Yackandandah. The application sought approval under rule 114 for a new pharmacy in a rural area. On 14 July 2008 Medicare referred the application to the Authority. The Authority received it on 17 July 2008, considered it at a meeting on 29 August 2008 and on 2 September 2008 notified Medicare and the Horsfalls that it recommended the application not be approved. The letter notifying the Horsfalls of their unsuccessful application incorrectly stated that it was unsuccessful because “[t]he Authority was not satisfied that the application met the requirements of Rule 114”. In fact, the Authority was satisfied at the date of its recommendation that the Horsfalls met the requirement in rule 114 that there be no existing approved premises, (including, by dint of s 6(2)(a) of the Determination, premises in relation to which the Authority had already recommended approval) within 10 km by the shortest lawful access route. In fact, at that time the nearest approved premises were in the town of Beechworth, approximately 22.5 km from Yackandandah. However, as the letter from Medicare itself made clear, the application was in fact unsuccessful because the Authority was not satisfied that the requirement in rule 201(a) had been met, namely that the applicants had a legal right to occupy the proposed premises on the date of the application. The letter recorded the Authority’s reasons as follows: The Authority noted the letter of offer dated 7 July 2008 from Trivett Keating which had not been accepted. This is a reference to a letter addressed to Mr Horsfall from the solicitors for the owner of the proposed premises in Yackandandah, which the Horsfalls attached to their application. The letter set out the main terms of the lease but also indicated that a formal lease had not yet been entered into: [The owners] understand that your commitment to sign a Lease depends upon you obtaining approval from various statutory authorities. They will instruct us to prepare the full formal required Lease and Disclosure Statement immediately you confirm that you are ready to sign the formal document. In its Statement of Reasons, which the Authority lodged with the AAT pursuant to s 37 of the AAT Act (s 37 statement), the Authority expanded on the reason why it was not satisfied that the Horsfalls had a legal right to occupy the proposed premises on the date of their application (or on the date of its decision):The Authority considered the letter from Trivett Keating, Legal Practitioners on behalf of the landlord dated 7 July 2008. The Authority noted that the letter contained the proposed terms of the lease and that a formal lease would not be prepared until the Applicants indicated their intention to proceed. The Authority noted there was no evidence that the Applicants had provided the landlord with information indicating their intention to proceed prior to the date the Application was made.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The AAT therefore approached its review of the Authority’s decision on the basis that the only question for it to determine was whether or not the Horsfall application met the requirement in rule 114 that the proposed premises were at least 10 km from the nearest approved premises. If the fact that the Authority had by this time recommended the Carter application for approval was relevant to the AAT’s decision, then rule 114 was not satisfied and the AAT was obliged by s 9 of the Determination to recommend that the Horsfall application not be approved. That issue is ultimately the issue upon which this appeal turns.The AAT’s decision The AAT delivered its decision on 22 October 2009. Essentially, it decided that the Horsfall application should be recommended for approval The AAT considered that it should determine whether or not rule 114 was satisfied on the basis of the facts as they were at a point in time before its own decision. It is not entirely clear from the AAT’s reasons what that point in time was, but at [29] of her reasons the Senior Member appears to assume that the appropriate point in time is the date of the Horsfall application. As at that time the Authority had not recommended the Carter application for approval and (she inferred from the concession) the Horsfall application met all applicable requirements including the requirement in rule 114, she decided that it should be recommended for approval. The Senior Member’s conclusion turned on her understanding of the High Court’s decision in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi). The Senior Member summarised the effect of Shi at [24] as follows:In essence, the High Court in Shi held that there is nothing in the Tribunal’s enabling legislation that confines it to the facts and circumstances before the primary-decision maker [sic]. The exception to this general principle is that, if the statute under which the decision under review was made limits the review to the particular time in the past, then the Tribunal will similarly be limited to the state of affairs existing at the relevant time. [Footnote omitted.] The Senior Member then quoted a long passage from the judgment of Kiefel J in Shi at [142] and went on to say at [25]:Any restriction on the Tribunal to consider only conduct and events up to a certain point in time would have to arise from the intention of the legislation under consideration and the nature of the decision under review. The Senior Member recognised at [26] that, unlike rules 201(a) and (b), rule 114(b) did not specify a time at which its requirement had to be met. However, relying on a passage from another decision of the AAT in Re Friendly Society Medical Association Ltd and Australian Community Pharmacy Authority [2008] AATA 1055; (2008) 106 ALD 635 (Friendly Society), and after making the gratuitous observation that “curiously, the Authority’s position was contrary to the position it takes in this matter”, she went on:[I]t is inherent in the nature of a decision under section 99K [a decision of the Authority whether or not to recommend approval of an application] that review of that decision is confined to identified past events. It would be bizarre, in my view, if the evidence in respect of different aspects of an application under section 90 were to be strictly considered as at different times. A decision as to whether an Applicant meets all the requirements, because of the temporal element inserted by Item 201 of the Rules flavours, in my view, the whole entitlement question.
Ratio Decidendi
Legal Principle Established
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