Flaherty v Secretary, Department of Health and Ageing

In the case of Flaherty v Secretary, Department of Health and Ageing, the central issue was the cancellation and subsequent reinstatement of an approval granted under the National Health Act 1953 (Cth). The third respondent, Ms Hinde, had her approval to supply pharmaceutical benefits cancelled by the delegate of the first respondent, the Secretary of the Department of Health and Ageing, on 20 April 2009. The decision was subsequently remade and the approval reinstated on 26 May 2009, based on the premise that Ms Hinde might not have been given procedural fairness in the original decision-making process. The key legal questions revolved around whether Ms Hinde was indeed denied procedural fairness, whether the delegate had the authority to remake the original decision under section 33(3) of the Acts Interpretation Act 1901 (Cth), and if the power to cancel an approval constituted a power to "make, grant or issue any instrument" for the purposes of section 33(3) of the Acts Interpretation Act.

The court found that Ms Hinde had not been denied procedural fairness as the delegate was not aware of an offer to purchase her approval at the time of the original decision. The court also concluded that the delegate did not possess the power to remake the decision under section 33(3) of the Acts Interpretation Act, as the power to cancel an approval under section 98(3) of the National Health Act did not amount to the issuance of an instrument. Consequently, the original decision to cancel Ms Hinde’s approval was deemed valid, and the subsequent attempts to reinstate it were without legal effect.

The appeal was allowed, and the orders of the primary judge were set aside. The court declared that the approval was validly cancelled on 20 April 2009 and that the decisions made on 26 May 2009, 8 July 2009, and 17 August 2009 to reinstate the approval were invalid. Additionally, the first respondent was ordered to pay the costs of both the appellant and the applicant.