Dale Pharmacy Group Pty Ltd and Australian Community Pharmacy Authority

[2022] AATA 203

Dale Pharmacy Group Pty Ltd and Australian Community Pharmacy Authority [2022] AATA 203 (1 February 2022)

Division:GENERAL DIVISION

File Number(s):2021/6460      

Re:Dale Pharmacy Group Pty Ltd  

APPLICANT

Australian Community Pharmacy Authority And  

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:1 February 2022

Place:Sydney

Application for Extension of Time refused

................[sgd]........................................................

Deputy President B W Rayment OAM QC

Catchwords

Practice and Procedure – application for Extension of Time– application not in compliance with National Health (Australian Community Pharmacy Rules) Determination 2018 -  secondary application to respondent if granted will make present application moot, application for extension of time refused

Legislation

National Health (Australian Community Pharmacy Authority Rules) Determination 2018
National Health Act 1953

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

1 February 2022

1. The respondent opposes an application for extension of time to file an application for review of the respondent’s decision to refuse to recommend to the Secretary of the Department of Health that the applicant’s application to supply pharmaceutical benefits be approved.

2. Ms Knight from the Australian Government Solicitor’s office opposed the application upon two grounds; First, that the application was not in compliance with item 10(3)(b) of the National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (the Rules), and second that in any event the applicant had made a fresh application which will come before the respondent in due course and if granted, would make the present application moot.

3. The submissions of Ms Knight on the first of those points appear on the evidence before me to be correct. The rules bind the respondent: see ss 99K and 99L of the National Health Act 1953 which provide as follows;

   Section 99K

   Functions

   (1)  The functions of the Authority are:

   (a)  to consider applications under section 90; and

   (b)  to make, in respect of an application under section 90:

   (i)  a recommendation whether or not the applicant should be approved under that section in respect of particular premises; and

   (ii)  if an approval is recommended--recommendations as to the conditions (if any) to which the approval should be subject.

   (2)  In making a recommendation under subsection (1), the Authority must comply with the relevant rules determined by the Minister under section 99L.

   (3)  All recommendations of the Authority under subsection (1) are to be made to the Secretary.

   Section 99L

   Determination of rules by Minister

   The Minister must, by legislative instrument, determine the rules subject to which the Authority is to make recommendations under subsection 99K(1).

4. Item 10(3)(b) of the Rules is as follows:

   10  When Authority must recommend applicant be approved

   General requirements

   (3)  For the purposes of subparagraphs (1)(b)(ii) and (2)(b)(ii), the requirements are that the Authority is satisfied that:

   (b)  the applicant has, at all relevant times, a legal right to occupy the proposed premises (whether the right is to occupy the premises on the day the application is made or after that day);

5. The expression “all relevant times” is defined by item 5 as follows:

   All relevant times, in relation to an application, means:

   (a)  the day on which the application was made; and

   (b)  the day on which the application is considered by the Authority.

6. The respondent does not enjoy a discretion about the application to it, as a result of the combined effect of the provisions just referred to. The definition in item 5 means that the applicant had to have a legal right to occupy both on the date when it applied and on the decision date.

7. The application to the respondent was made on 7 November 2020 and the lease of the premises was not signed or dated until 7 December 2020. The date on which the application was considered by the respondent was 23 December 2020.

8. A lease duly executed, or an agreement for lease duly executed prior to 7 November 2020 would have sufficed.

9. I have examined materials forwarded by the applicant to the Tribunal after the oral argument, but I do not consider any of them to be an agreement for lease.

10. The applicant’s fresh application has been refused again by the respondent and that matter is now the subject of a fresh application for review filed by the applicant.

11. For reasons set out in paragraphs 2-9 above, the application for an extension of time is refused. 

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of

...............[sgd].........................................................

Associate

Dated: 1 February 2022

Date(s) of hearing:	19 October 2021
Date final submissions received:	9 November 2021
Applicant:	Mr and Mrs Dale
Solicitors for the Respondent:	Australian Government Solicitor