Cummins, E.M. v Pharmacy Restructuring Authority

Re: ELIZABETH MYRTLE CUMMINS
And: PHARMACY RESTRUCTURING AUTHORITY and SECRETARY, DEPARTMENT OF COMMUNITY
SERVICES AND HEALTH
No. WA G87 of 1991
FED No. 168

(1992) 107 ALR 316
(1992) 27 ALD 491 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J.(1)

CATCHWORDS

Administrative Law - review of decision refusing application for grant of financial assistance under National Health Act 1953 (s.99ZD) on ground application not duly made under the Act - error of law.

Acts Interpretation Act 1901 s.46A

Administrative Appeals Tribunal Act 1975

Administrative Decisions (Judicial Review) Act 1977 sub-s.3(3)

Community Services and Health Legislation Amendment Act 1990

National Health Act 1953 Pt.VII, Pt.VIII; Div.4B, Div.4C; ss.85, 89, 90, 92A, 95, 98, 99H-99Y, 99J, 99K, 99L, 99Z-99ZG, 107, 113, 114, 115, 116; sub-ss.84(1), 90(1) and (2), 92A(1) and (3), 95(8), 98(3), 99K(2), 99L(2), 99ZB(3), 105AB(10) and (11); paras.95(1)(b), 98(1)(a), 98(2)(a), 99ZA(4)(b)

Commonwealth of Australia Gazette 23 January 1991, Determination pursuant to s.99L National Health Act 1953 Item 5(a)

Formosa v. Secretary, Department of Social Security (1988) 81 ALR 687

Minister for Immigration, Local Government and Ethnic Affairs v. Kurtovic (1990) 92 ALR 93

Rubrico v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 681

HEARING

PERTH

#DATE 6:4:1992

Counsel for the Applicant: Mr P.M. Nisbet

Solicitors for the Applicant: Butcher Paull and Colder

Counsel for the First and
Second Respondents: Mr P.R. Macliver

Solicitors for the First and
Second Respondents: Australian Government Solicitor

ORDER

The decisions of the respondents be set aside.

The matter be returned to the respondents for consideration according to law.

The respondents pay the applicant's costs of this application to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). By consent the Court extended the time in which the applicant could commence the application.

The applicant seeks to review a decision made under the National Health Act 1953 ("the Act") that an application for a grant of financial assistance lodged by the applicant under s.99ZD of the Act not be approved.
The applicant's case as presented was that the Pharmacy Restructuring Authority ("the Authority") or the Secretary ("the Secretary") to the Department of Community Services and Health ("the Department") erred in law in misunderstanding, and in failing to properly apply, the provisions of the Act when it was determined that a grant of financial assistance to the applicant should not be approved. Alternatively, it was submitted that the Authority or Secretary was estopped from contending that the applicant was not entitled to lodge an application for a grant of financial assistance at the time she did.
As will be seen in ss.99ZA, 99ZC and 99ZD of the Act set out later in these reasons, the Secretary is unable to approve the payment of an allowance or grant of financial assistance if the Authority recommends that payment of an allowance or grant of assistance not be approved and it is arguable that in such a case the Authority exercises a determinative power by means of such a recommendation and no independent decision-making function remains to be performed by the Secretary.
However, sub-ss.105AB(10) and (11) of the Act, inserted at the same time as ss.99ZA, 99ZC and 99ZD, make decisions of the Secretary refusing to approve the payment of an allowance or grant of financial assistance under those sections reviewable decisions under the Administrative Appeals Tribunal Act 1975 and unless the words "refusing to approve" used in sub-ss.105AB(10) and (11) are intended to apply only to decisions of the Secretary rejecting recommendations for approval submitted by the Authority, the terms of the sub-sections indicate that Parliament regarded a refusal of approval to be a decision made by the Secretary. The application of a limited construction to sub-ss.105AB(10) and (11) would produce an odd result in that, for reasons not made evident in the legislation, a refusal effected by a recommendation of the Authority would be given protection from review.
Under sub-s.3(3) of the ADJR Act the making of a recommendation by the Authority would be deemed for the purposes of that Act to be the making of a decision and, therefore, both the recommendation of the Authority and the decision of the Secretary are properly included in the application for review.
This application arises out of amendments made to the Act in December 1990 to give effect to an agreement made between the Minister for Community Services and Health ("the Minister") and the representative organization for pharmacists, the Pharmacy Guild of Australia, ("the Guild") in respect of the restructuring of the practise of pharmacy in Australia by, inter alia, reducing the number of pharmacists approved under the Act as suppliers of pharmaceutical benefits.
The applicant carried on business as a pharmacist at Gnowangerup, a small country town in the south-west of Western Australia and had done so as a sole proprietor since approximately May 1985. In mid 1990, as a result of circulars issued by the Guild to its members, the applicant became aware of the Minister's intention to present to the Parliament proposed legislation for the restructuring of the pharmacy industry by encouraging some pharmacists to cease operating as approved pharmacists in return for grants of financial assistance. Thereafter, in October, November and early December 1990, the applicant directed enquiries to officers of the Department in Canberra as to the contents and progress of the proposed legislation.
The relevant amendments to the Act came into effect on 18 December 1990. On 19 December 1990 the applicant was advised by an officer of the Department that the amendments had received the Royal assent and were now in effect. No form of application for a grant of financial assistance was prescribed by the legislation. However, the applicant was advised that application forms were being prepared by the Department and would be available at a later date. The applicant advised the officer that she intended to close her pharmacy business on 21 December 1990. The applicant states that she was advised not to confirm her application for financial assistance by letter but to await the delivery of the appropriate form for completion and to return it in due course. She states that she gave details of her name and address to the officer. It is not disputed that a form of application prepared by the Department was forwarded to the applicant on or about 28 December 1990.
Until about December 1989 the applicant resided in Gnowangerup with her husband who conducted a medical practice in that town. In December 1989 the applicant's husband ceased his practice in Gnowangerup and he and the applicant moved to Perth. However, the applicant continued to operate the pharmacy business at Gnowangerup. Nine months elapsed before another medical practitioner commenced practise in Gnowangerup and during that period the applicant spent only one day a week at the pharmacy. A pharmacy assistant attended at the pharmacy for the remainder of the week. After the arrival of the medical practitioner the applicant attended the pharmacy five days a week and returned to her home in Perth on the weekends. She was also able to obtain the services of a locum tenens pharmacist when required. Gnowangerup was the applicant's "home town" and she had close family members still living there with whom she was able to stay when she commuted from Perth to Gnowangerup to conduct the pharmacy business in the twelve months prior to December 1990.
When the applicant closed the doors of the pharmacy on 21 December 1990 she did not relinquish her right to possession of the premises on which the pharmacy business was conducted nor remove the pharmacy fixtures and fittings. Shortly after closing the business the applicant experienced health problems and entered hosptial for medical treatment in January 1991.
The parties tendered affidavits which deposed to the contact between the applicant and officers of the Department in December 1990. To the extent that there is any conflict raised in that material, I consider that upon the balance of probabilities indicated by that material the applicant orally advised officers of the Department that the amendments to the Act now having come into force she intended to make application for a grant of financial assistance as a pharmacist who intended to cease the supply of pharmaceutical benefits and that she would close the pharmacy business on 21 December 1991. She was informed that the Authority was in the process of preparing forms for such applications and a form would be forwarded to her as soon as it became available. I accept that she was advised to insert a date in that form that would conform with the date of her oral advice to the Department, no form being available for her to submit prior to the date on which the pharmacy business would be closed.
The applicant returned a completed application form in late January 1991. The date of receipt endorsed on the application by the Department was 1 February 1991.
On 7 March 1991 the Authority recommended that a grant for financial assistance not be approved, the stated reason for such recommendation being that the applicant was not trading and supplying pharmaceutical benefits at the time of lodging the application. Such a reason suggests that the Authority determined that the applicant had not made an application within the terms of the Act.
By letter dated 3 April 1991 the Authority informed the applicant that the Authority had not recommended that a grant be made to the applicant under the Act and provided the following reasons for that decision.

"The Authority was aware that your approval to supply pharmaceutical benefits was revoked by the Health Insurance Commission on 21 December 1990. Your application was received by the Authority on 1 February 1991 although it was dated 20 December

1990. Pharmacists were advised by letter dated 21 December 1990 by the Secretary to the Authority as to where application forms could be obtained and these forms were not available prior to that date. The Authority considered that you had ceased to supply pharmaceutical benefits before an application for financial assistance was made to the Department. Under the legislation establishing the Pharmacy Restructuring Authority applications for financial assistance must be made before a pharmacy ceases to be approved to supply pharmaceutical benefits."

Although the letter was under the hand of the Secretary of the Authority, it was forwarded to the applicant after the Secretary to the Department had made the decision that a grant of financial assistance to the applicant not be approved and as such it represented the reasons for decision of the Secretary to the Department or revised reasons of the Authority adopted by the Secretary.
The applicant had forwarded a request for cancellation of her standing as an approved pharmacist under the Act approximately two weeks after returning the form which recorded her application for the grant of financial assistance under the Act. A date of receipt was endorsed on the request for cancellation of approval as follows, "Health Insurance Commission, Received, Perth 15.2.1991".
By letter dated 21 February 1991 the Health Insurance Commission purported to give "formal advice" that relinquishment of that approval "became effective from the close of business on 21 December 1990".
I now turn to the relevant provisions of the Act which occur in Pt.VII of the Act under the heading "Pharmaceutical Benefits".
Pursuant to s.85 of the Act benefits in accordance with Pt.VII are to be provided by the Commonwealth in respect of drugs and medicinal preparations in relation to which Pt.VII applies, being drugs and medicinal preparations, the subject of declarations by the Minister. Sub-section 84(1) defines a pharmaceutical benefit as a drug or medicinal preparation in relation to which, by virtue of s.85, Pt.VII applies.
Under s.89 of the Act a person is not entitled to receive a pharmaceutical benefit unless it is supplied, inter alia, by an approved pharmacist at or from premises in respect to which the pharmacist is, for the time being, approved. Sub-section 84(1) defines an approved pharmacist as a pharmacist for the time being approved under s.90. Sub-sections 90(1) and (2) of the Act read as follows:

"90. (1) Subject to this section, the Secretary may, upon application by a pharmacist who is willing to supply pharmaceutical benefits on demand at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at or from those premises.

(2) Where a pharmacist desires to supply pharmaceutical benefits at or from several premises (being premises at which he or she carries on, or is about to carry on, business as a pharmacist) a separate application shall be made in respect of each of the premises and, where approval is granted in respect of 2 or more premises, a separate approval shall be granted in respect of each of the premises. ..."

By s.92A of the Act the approval of a pharmacist under s.90 is subject to the conditions set out in sub-s.92A(1) none of which are relevant to the issues which arise in this application.

Under para95(1)(b) of the Act the Minister may, by notice in writing and after investigation and report by an appropriate Committee of Inquiry, reprimand an approved pharmacist or suspend or revoke the approval of a pharmacist under s.90. The Committee of Inquiry referred to in s.95 is established under Pt.VIII of the Act. (See s.107.) Under s.113 the Minister may establish a Pharmaceutical Services Federal Committee of Inquiry and under s.114 that Committee shall inquire into and report to the Minister on any matter referred to the Committee by the Minister in respect of or arising out of the services or conduct of approved pharmacists in connection with the supply of pharmaceutical benefits under Pt.VII. (See also ss.115 and 116 with respect to a State Committee of Inquiry.)
Sub-section 95(8) states that the Minister shall not suspend or revoke an approval under para95(1)(b) unless the Minister is satisfied that the pharmacist has been guilty of conduct which is an abuse of the approval or an abuse or contravention of the Act or the evidence before the Committee shows the pharmacist to be unfit to continue to enjoy the approval. In sub-s.92A(3) conduct in contravention of the conditions set out in s.92A is deemed to be an abuse of the approval.
It is not part of the conditions imposed by s.92A that an approved pharmacist supply pharmaceutical benefits at specified times or refrain from ceasing to so supply. Perhaps a continuing failure to supply may be conduct that could lead to the institution of an inquiry under ss. 114 or 116 of the Act but having regard to the specific provisions of sub-s.98(3) it is unlikely that that would be so. Mere cessation of supply of pharmaceutical benefits would not be either a contravention of the Act or an abuse of the approval granted under s.90 of the Act. Pursuant to s.98 of the Act cancellation of the approval of a pharmacist under s.90 of the Act may be effected in three separate circumstances. First, under para98(1)(a) which reads as follows:

"98. (1) Whenever:

(a) an approved pharmacist requests that his or her approval under section 90 in respect of all or any of the premises in respect of which he or she is approved be cancelled;

...

the Secretary shall cancel that approval."

Secondly, under para98(2)(a) which reads as follows:

" (2) Where:

(a) an approved pharmacist gives the Secretary notice in writing that the pharmacist has ceased to carry on business as a pharmacist at premises in respect of which the pharmacist is approved; ...

the Secretary may cancel the approval."

Thirdly, under s.98(3) which reads as follows:

"(3) Where the Secretary is satisfied that an approved pharmacist has, for a period of not less than 6 months, ceased to carry on business as a pharmacist at premises in respect of which the pharmacist is approved, the Secretary may, by notice in writing to the pharmacist, cancel the approval of the pharmacist under section 90."

It is interesting to contrast the provisions of paras.98(1)(a) and 98(2)(a). Paragraph 98(1)(a) is introduced by the word "Whenever" and imposes as a mandatory duty on the Secretary to cancel the approval upon receipt of the request. Paragraph 98(2)(a) is introduced by the word "Where" which suggests that the following defined circumstance is a matter the Secretary may take into consideration in exercising a discretion thereby granted to the Secretary to cancel the approval. It is to be noted that notification by an approved pharmacist that the pharmacist has ceased to carry on business as a pharmacist at the premises in respect of which the pharmacist is approved will not necessarily lead to the cancellation of the approval granted to the pharmacist under s.90 of the Act.
Furthermore, sub-s.98(3) requires a period of not less than six months to elapse after a pharmacist has ceased to carry on business as a pharmacist at premises in respect of which the pharmacist is approved before the Secretary may cancel the approval granted to the pharmacist under s.90. The fact that such a power remains to be exercised in the discretion of the Secretary suggests that the Secretary may have regard to various matters to determine whether cancellation of the approval is appropriate in the circumstances.
On 6 December 1990 the Minister and the Guild executed an agreement, the general objectives of which were stated to be as follows:

"2.1 The parties record that it is their intention that the terms of this Agreement will produce a more efficient community pharmacy structure in Australia, resulting in benefits to both parties ("the structural reform").

2.2 The structural reform includes the closure and/or amalgamation of a number of community pharmacies in Australia. Payments for pharmacy closures and amalgamations will be in the form of a package available to pharmacists whose businesses were operational prior to 1 July 1989 ("the closure and amalgamation packages").

2.3 The parties agree that the costs of the structural reform will be financed equally by the Commonwealth and approved pharmacists ("the restructuring costs") subject to any formula adjustments as per paragraphs 12 and 13."

By the Community Services and Health Legislation Amendment Act 1990, the relevant provisions of which came into effect on 18 December 1990, Div.4B - Pharmacy Restructuring Authority (ss.99H-99Y) and Div.4C - Financial Assistance for the Restructuring of the Pharmacy Industry (ss.99Z-99ZG) of Pt.VII were inserted. Section 99J established the Authority and s.99K set out the functions of the Authority which included, inter alia, the obligation to consider applications for financial assistance and to make recommendations whether or not such applications should be approved by the payment of an allowance or a grant of financial assistance and recommend the amount of grant or allowance. By sub-s.99K(2) the Authority was required to comply with relevant guidelines determined by the Minister under s.99L. Section 99L obliged the Minister to determine in writing the guidelines subject to which the Authority is to make recommendations and by sub-s.99L(2) such a determination was to be in the nature of a regulation to which s.46A of the Acts Interpretation Act 1901 applied.

The legislative machinery for restructuring the pharmacy industry contained in Div.4C - Financial Assistance for the Restructuring of the Pharmacy Industry is of limited duration. Pursuant to s.99ZE an application may not be made under the Division after 28 February 1995 and by s.99ZG the Division ceases to have effect on a day as specified in that section occurring after 31 March 1995.
The relevant provisions relating to payments of allowances and grants of financial assistance are contained in the following sections:

"99ZA. (1) Subject to this section, the Secretary may, upon application by the pharmacist or pharmacists approved under section 90 in respect of particular premises, approve the payment to the pharmacist or pharmacists of an essential pharmacy allowance in respect of the premises.

(2) An application under subsection (1) must be referred to the Authority.

(3) The payment of an allowance may be approved under this section only if the Authority has recommended the making of the payment, but the Secretary may refuse to approve a payment even if it has been recommended by the Authority.

(4) An approval must be in writing and set out the following details in accordance with the recommendations of the Authority:

(a) the rate at which the allowance is payable;

(b) any conditions subject to which the allowance is payable.

99ZB. (1) An amalgamation agreement is an agreement the purpose of which is to reduce the number of premises from which pharmaceutical benefits are supplied.

(2) The agreement may be in respect of 2 or more such premises in an area.

(3) The agreement is to the effect that:

(a) pharmaceutical benefits are to be supplied at or from one of those premises; and

(b) pharmaceutical benefits will cease to be supplied at or from the other premises.

(4) The parties to the agreement are the pharmacist or pharmacists (as the case may be) approved under section 90 in respect of each of the premises to which the agreement relates. 99ZC. (1) All pharmacists who are parties to a particular amalgamation agreement may together make an application to the Secretary for financial assistance under this section.

(2) An application under subsection (1) must be referred to the Authority.

(3) Subject to this section, the Secretary may approve the grant of financial assistance to the pharmacists who have made an application under subsection (1).

(4) A grant may be approved under this section only if the Authority has recommended the making of the grant, but the Secretary may refuse to approve a grant even if it has been recommended by the Authority.

(5) An approval must be in writing and set out the following details in accordance with the recommendations of the Authority:

(a) the amount of the grant;

(b) any conditions subject to which the grant is made. 99ZD. (1) Subject to subsection (2), where the pharmacist or pharmacists approved under section 90 in respect of particular premises propose to cease supplying pharmaceutical benefits at or from those premises, the pharmacist, or the pharmacists together, may make an application to the Secretary for financial assistance under this section.

(2) The pharmacist or pharmacists may not make an application under subsection (1) if the supply of pharmaceutical benefits at or from the premises is to cease because the pharmacist or pharmacists have agreed to do so under an amalgamation agreement.

(3) An application under subsection (1) must be referred to the Authority.

(4) Subject to this section, the Secretary may approve the grant of financial assistance to the pharmacist or pharmacists who have made an application under subsection (1).

(5) A grant may be approved under this section only if the Authority has recommended the making of the grant, but the Secretary may refuse to approve a grant even if it has been recommended by the Authority.

(6) An approval must be in writing and set out the following details in accordance with the recommendations of the Authority:

(a) the amount of the grant;(b) any conditions subject to which the grant is made."

In respect of the essential pharmacy allowance provided for in s.99ZA of the Act there is no requirement that a pharmacist, approved under s.90 in respect of particular premises, carry on business as a pharmacist or supply pharmaceutical benefits at the time the pharmacist applies for an essential pharmacy allowance in respect of those premises. If an approved pharmacist temporarily ceased supplying pharmaceutical benefits pending application for, and payment of, an essential pharmacy allowance, it would not be contrary to the provisions of s.99ZA for an application for the payment of such an allowance to be lodged by the pharmacist and dealt with by the Authority and the Secretary. No doubt the payment of the allowance would be subject to a condition imposed under para99ZA(4)(b) that the allowance would be payable only so long as the approved pharmacist supplied pharmaceutical benefits at the premises in respect of which the pharmacist had been approved.
With regard to the amalgamation of pharmacies provided for in ss.99ZB and 99ZC, it is apparent that the object of the legislation is to provide incentives for amalgamation by the payment of monetary grants.
Sub-section 99ZB(3) requires the effect of the amalgamation agreement to be that pharmaceutical benefits will cease to be supplied on premises in respect of which an approved pharmacist has been approved. Such a requirement may be satisfied by an agreement which provides for the termination of supply of pharmaceutical benefits upon execution of the amalgamation agreement and nothing contained in ss.99ZB or 99ZC requires the parties to an amalgamation agreement to continue to supply pharmaceutical benefits from all of the premises referred to in the amalgamation agreement until an application is made by the parties for the grant of financial assistance pursuant to s.99ZC of the Act.
In respect of 99ZD of the Act the respondents submitted that the words "propose to cease supplying pharmaceutical benefits" distinguished its provisions from the preceding sections in that those words operated as words of limitation upon the operation of the section allowing only pharmacists who had not executed an intention to cease supplying pharmaceutical benefits to apply for the grant of financial assistance under the section. The respondents submitted that an approved pharmacist must be trading and supplying pharmaceutical benefits at the time of making an application for a grant.I am unable to accept that submission for several reasons.
First, these provisions of the Act relating to the restructure of the pharmacy industry are not concerned with the maintenance and continuity in the supply of pharmaceutical benefits but with obtaining a reduction of premises from which pharmaceutical benefits are supplied by approved pharmacists by encouraging some of those approved pharmacists to agree to the cancellation of their respective approvals in return for the payment of grants of financial assistance.
Secondly, it would be a strange result in the context of Div.4C for such a construction to be applied to s.99ZD when the achievement of the same purpose in s.99ZC is not subject to the same limitation.
Furthermore, an intention to cease supplying pharmaceutical benefits is a continuing state of mind able to be resiled from as long as the pharmacist remains an approved pharmacist pursuant to s.90 of the Act. The important requirement of s.99ZD is that there be, at the time of application for the grant of financial assistance, an approved pharmacist who intends to relinquish the benefit provided by the Act, namely the right to supply pharmaceutical benefits pursuant to an approval granted under s.90 of the Act. The object of s.99ZD is to attract applications for cancellation of approvals. The guidelines determined by the Minister under the Act and notified in the Commonwealth of Australia Gazette on 23 January 1991 were consistent with that object. Pursuant to guideline 5(a) a grant of financial assistance shall be recommended only in respect of each cancellation of approval of a pharmacist resulting in a reduction in the number of premises in respect of which pharmacists are approved under s.90 of the Act.
Whether an approved pharmacist who has put it beyond his or her power to resume the supply of pharmaceutical benefits at the premises by losing control of the premises in respect of which the pharmacist is approved to carry on such supply remains entitled to apply for a grant of financial assistance under s.99ZD of the Act is unnecessary to decide.
The applicant was an approved pharmacist at the time of her application for a grant of financial assistance and although the applicant had ceased trading as a pharmacist she retained possession of the premises, fixtures and fittings remained in situ and the applicant had access to the services of a locum tenens to continue the conduct of the pharmacy business on the premises if necessary to do so.As far as the applicant was concerned, at the time she lodged her application for a grant of financial assistance she was an approved pharmacist who proposed to permanently cease supplying pharmaceutical benefits on the premises to which the approval related and was prepared to relinquish that approval to effect that intention.
The reasons of the Secretary set out in the letter to the applicant of 3 April 1991 showed that the decision to refuse the application for a grant was not based upon the ground that at the time of making her application the applicant was not trading and supplying pharmaceutical benefits. The Authority determined and the Secretary accepted that because application forms were not available until after 21 December 1990, the date 20 December 1990 recorded as the date of application on the form submitted by the applicant could not have been the true date of application, and that the actual date of application must have been a date later than 21 December 1990. The Secretary then reasoned that because the applicant's approval to supply pharmaceutical benefits had been revoked by the "Health Insurance Commission" on 21 December 1990, the applicant was unable to make an application for a grant of financial assistance after 21 December 1990. The Court received no submissions on the powers or functions of the Health Insurance Commission nor was it advised of any delegation to the Commission by the Secretary of the Secretary's power to cancel the approval of pharmacists under s.98 of the Act. Whatever the legislative foundation may have been for the actions of the Health Insurance Commission as advised in its letter to the applicant of 21 February 1991, it remained the fact that as at 1 February 1991 the applicant was an approved pharmacist under the Act. Whatever power the Health Insurance Commission may have had to nominate a retrospective date for a date of cancellation of the approval, the act of cancellation carried out between 15 and 21 February 1991 could not render invalid a valid application lodged by the applicant under s.99ZD two weeks previously.
It was conceded that it was not necessary for an applicant pharmacist to continue to supply pharmaceutical benefits after making application for a grant of financial assistance and to be so supplying at the time of consideration of the application nor was it necessary for the pharmacist to be an approved pharmacist at the time of determination of the application. It was argued, however, that it was the intention of s.99ZD that the pharmacist be supplying pharmaceutical benefits at the date of the application and not merely an approved pharmacist. The argument advanced by counsel for the respondents did not rely upon the reasons set out in the letter notifying the refusal of the application for a grant of assistance and did not contend that a purported nomination of retrospective operation of the cancellation of an approval could act to invalidate an otherwise valid application for the grant of financial assistance. If that ground had been argued it may have been necessary to consider whether the Secretary should or could be estopped from selecting a retrospective date for the operation of cancellation of approval after receiving an application for a grant and relying upon that act of cancellation as the ground on which the application for financial assistance would be rejected by the Secretary.
It follows from the foregoing reasons that the Secretary and Authority misconstrued the Act and that the decision under the Act involved an error of law as a result of which the exercise of the discretion provided by the Act miscarried.
It is unnecessary, therefore, to deal with the applicant's alternative claim that the Secretary is estopped from contending that an application for a grant of financial assistance was not lodged in the manner and time required by the Act (see Formosa v. Secretary, Department of Social Security (1988) 81 ALR 687; Rubrico v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 681; Minister for Immigration, Local Government and Ethnic Affairs v. Kurtovic (1990) 92 ALR 93) but the following comments may be made.
From the material submitted to the Court it should be concluded that by 19 December 1990 the applicant had advised officers under the control of the Secretary that she intended to close the doors of her pharmacy on 21 December 1990 and wished to apply for a grant of financial assistance under the provisions of the Act that had come into operation on the day before. Although the officers to whom the applicant spoke may not have directly stated to the applicant that she would remain eligible to apply for a grant of assistance under the Act if she closed her pharmacy business on 21 December 1990, the conduct of the officers was sufficient to lead the applicant to believe that such was the case and I find it to be probable that the officers advised the applicant that the application should be made on a form yet to be prepared and issued by the Department and that the applicant should insert in the form to be forwarded to her in due course the date that would have been inserted if the Department had been able to make a form available to her by the following day, namely 20 December 1990. Sections 99ZC and 99ZD do not prescribe a form for lodgment of an application and do not state that an application is to be in writing. The form prepared by the Department is fairly basic in its content and the only item not a matter of Departmental record would be the details to be inserted in the box headed "Date of closure".
Although it may present administrative disadvantages, there is nothing in ss.99ZA, 99ZC and 99ZD to say that an application for financial assistance shall not be considered if it is made orally. The effect of the applicant's telephone contact with the officers of the Department on 19 December 1990 was notification of an intention to cease supplying pharmaceutical benefits at the Gnowangerup pharmacy and a request that the applicant be granted financial assistance under s.99ZD of the Act by reason of that intended cessation of service.
Upon those facts no question of estoppel arises.
Although the applicant may have acceded to a request made by Departmental officers that she complete a formal application on a form to be prepared by the Department and delivered to the applicant at a later date and may have refrained from submitting an application by way of letter and proceeded to cease trading on 21 December 1990 upon the representation that a Departmental form of application completed by the applicant and dated 20 December 1990 would be a sufficient application under the Act, no reliance to her detriment ensued. The applicant had made an informal application for a grant on 19 December 1990 and had agreed to confirm the details of that application by completing and submitting a form to be prepared and supplied to her by the Department in due course. If the Act requires an applicant to be not only an approved pharmacist but also a pharmacist supplying pharmaceutical benefits on the date of application and, as I have held, it does not, the applicant was such a pharmacist on 19 December 1990.
The application for an order of review should be upheld and an order made that the decision of the Authority to recommend that the applicant's application for a grant of financial assistance be refused and the decision of the Secretary refusing the application be set aside and an order made that the matter be returned to the Authority and the Secretary for consideration according to law.

[1992] FCA 168

06 APRIL 1992