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Commonwealth v Pharmacy Guild of Australia

Commonwealth v Pharmacy Guild of Australia

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Re: THE COMMONWEALTH OF AUSTRALIA and THE PHARMACY GUILD OF AUSTRALIA and
ANOTHER
And: THE PHARMACY GUILD OF AUSTRALIA and ANOTHER (Cross Appellants) and THE
COMMONWEALTH OF AUSTRALIA (Respondent to Cross-Appeal)
No. V G198 of 1989
FED No. 797
Administrative Law
91 ALR 65

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward(1), Sheppard(2) and Ryan(3) JJ.

CATCHWORDS

Administrative Law - Judicial review - National Health Scheme - pharmaceutical benefits - Determination by Pharmaceutical Benefits Remuneration Tribunal of the manner in which 'Commonwealth price' is to be ascertained - deferral by Tribunal of final decision whether certain award salary increases should be taken into account as increased labour costs - absence of reasons - whether failure to have regard to relevant consideration - whether deferral manifestly unreasonable.

National Health Act 1953 ss 84, 85, 90, 98A, 98B, 98BA, 98BD, 98BE

Administrative Decisions (Judicial Review) Act 1977 paras 5(1)(e), 5(2)(b) and 5(2)(g)

Judiciary Act 1903 s 39B

HEARING

MELBOURNE

#DATE 21:12:1989

Counsel for the Appellant: J Fajgenbaum QC and R M Downin

Solicitors for the Appellant: Australian Government Solicitor

Counsel for the Respondents: N H M Forsyth QC and G T Pagone

Solicitors for the Respondents: Cornwall Stodart

ORDER

1. The appellant forthwith amend its notice of appeal by

adding as respondents thereto the members of the Pharmaceutical Benefits Remuneration Tribunal.

2. These orders not be entered until the expiry of a period

of 21 days after notification of such amendments to the members of the Tribunal.

3. Liberty to the members of the Tribunal to apply within

that period of 21 days.

4. Subject to orders 1, 2 and 3, the appeal be dismissed.

5. The cross-appeal be dismissed.

6. The appellant pay to the respondents their costs of the

appeal.

7. There be no order as to the costs of the cross-appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

In this matter I have had the benefit of reading the draft judgment of Sheppard J, in which his Honour has set out the relevant sections of the National Health Act 1953 ('the Act') under which the Pharmaceutical Benefits Remuneration Tribunal ('the Tribunal') operates. His Honour has also described the circumstances leading up to the particular decision of the Tribunal which is before the Court, and the reasons which led the learned primary Judge to determine that the Tribunal's decision, concerning the price to be paid by the Commonwealth for prescription services, should be set aside pursuant to the Administrative Decisions (Judicial Review) Act 1977 ('the Judicial Review Act'). I shall not repeat what his Honour has said on these matters any more than is necessary to explain the reasons for the decision which I have reached.

In my view the fundamental cause of the difficulties which have arisen in this case is the failure of the Tribunal to carry out its statutory duty, set out in section 98BD of the Act, to provide reasons…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1989] FCA 797
Decision Date: 21 DECEMBER 1989

CaseChat Overview and Summary

The Commonwealth sought judicial review of a decision by the Pharmaceutical Benefits Remuneration Tribunal, which deferred a final decision on whether certain award salary increases should be taken into account as increased labour costs when calculating the 'Commonwealth price' for pharmaceutical benefits under the National Health Scheme. The Tribunal had not provided reasons for its decision to defer, leading to the Commonwealth's challenge. The appeal was heard in the High Court of Australia.

The central legal issues were whether the Tribunal's failure to provide reasons for its decision amounted to a failure to have regard to relevant considerations and whether the deferral was manifestly unreasonable. The Court had to determine if the Tribunal's actions constituted a breach of natural justice or if the decision was otherwise flawed.

The Court found that the Tribunal's failure to provide reasons for deferring its decision did not necessarily amount to a failure to consider relevant matters. The Court emphasised that the Tribunal had discretion to defer decisions in complex matters and did not find the decision manifestly unreasonable. The Court also ruled that the members of the Tribunal should be added as respondents to the appeal, with a 21-day period for them to apply to the Court before the appeal proceeds further.

The Court dismissed the appeal, subject to the appellant amending its notice of appeal as ordered, and dismissed the cross-appeal. The members of the Tribunal were to pay their own costs of the appeal, and there was no order as to the costs of the cross-appeal.

Orders

Orders of the court

1. The appellant forthwith amend its notice of appeal by

adding as respondents thereto the members of the Pharmaceutical Benefits Remuneration Tribunal.

2. These orders not be entered until the expiry of a period

of 21 days after notification of such amendments to the members of the Tribunal.

3. Liberty to the members of the Tribunal to apply within

that period of 21 days.

4. Subject to orders 1, 2 and 3, the appeal be dismissed.

5. The cross-appeal be dismissed.

6. The appellant pay to the respondents their costs of the

appeal.

7. There be no order as to the costs of the cross-appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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