Ha and Australian Community Pharmacy Authority
[2009] AATA 305
•1 May 2009
CATCHWORDS – PRACTICE AND PROCEDURE – application fee – refund of application fee – transfer of application fee from one proceeding to another – whether withdrawal can be a termination of proceedings in manner favourable to applicant – certification given
Administrative Appeals Tribunal Act 1975 ss 3(1) and (2), 29, 34(1)(a), 42C, 42D(1), (2) and (4), 70
National Health Act 1953 s 90, 90(3A) and (3B), 99K(1), (2) and (3), 105AD(2), 105AB(7)
Administrative Appeals Regulations 1976 r 19(7)
Donovan v Repatriation Commission
Re Kong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 552
DECISION AND REASONS FOR DECISION [2009] AATA 305
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2008/3059
GENERAL ADMINISTRATIVE DIVISION )
Re JASON HA
Applicant
AndAUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondent
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2009/1436
GENERAL ADMINISTRATIVE DIVISION )
Re JASON HA
Applicant
AndSECRETARY, DEPARTMENT OF HEALTH AND AGEING
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 1 May 2009
Place: Melbourne
Decision:I certify that proceedings No. 2009/1436 have terminated in a manner favourable to the applicant.
S A FORGIE
Deputy President
REASONS FOR DECISION
The issue I have to decide is whether the applicant, Mr Ha, is entitled to a refund of the application fee he purported to pay for review of a decision of the Australian Community Pharmacy Authority (Authority).[1] The Authority had recommended that he not be approved under s 90 of the National Health Act 1953 (NH Act) for the purpose of supplying pharmaceutical benefits at premises at which he had chosen to open a pharmacy. At the request of the parties, the Tribunal remitted the Authority’s decision to it for reconsideration under s 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act). On reconsidering its recommendation, the Authority set it aside and substituted another recommending that he be approved. Some time later, Mr Ha sought a refund of the application fee he had paid.
[1] Proceedings No 2008/3059
As I explain below, Mr Ha was not required to pay an application fee in respect of the application he lodged for review of the Authority’s decision as it was out of time, he never sought an extension of time and the Tribunal did not order that the time within which he lodge it be extended. He was, therefore, entitled to a refund of his application fee.
The parties and I discussed the practical problems raised by his request and by the fact that Mr Ha would not be an approved person for the purpose of supplying pharmaceutical benefits unless the Secretary of the Department of Health and Ageing (Secretary) granted his application for approval. The fact that the Authority had recommended that he be approved was not enough. We discussed these issues at a directions hearing.
Mr Ha then applied for review of a decision of the Secretary’s decision.[2] He was again out of time and subsequently applied for an extension of time within which to apply for review of that decision. I decided to extend that time. With the consent of the parties, I made a decision under s 42C of the AAT Act setting aside the Secretary’s decision refusing Mr Ha’s application for approval under the NH Act and substituting a decision that he be so approved. Administrative action was taken to transfer the application fee from the file opened in relation to his application to review the Authority’s decision to that opened in relation to his application to review the Secretary’s.
[2] Proceedings No 2009/1436
Mr Ha was entitled to a refund of the application fee if it could be said that the “proceedings have terminated in a manner favourable …” to him within the meaning of r 19 of the Administrative Appeals Regulations 1976 (Regulations). In view of the decision under s 42C setting aside the Secretary’s decision and granting Mr Ha approval, I have decided that the proceedings have terminated in a manner favourable to him within the meaning of r 19 of the Regulations and that Mr Ha is entitled to a refund of the application fee.
BACKGROUND
When Mr Ha, who is a pharmacist, wanted to open a pharmacy, he applied to the Authority to approve him for the purpose of supplying pharmaceutical benefits at the premises he had chosen. He did so under s 90 of the NH Act. His application was referred to the Authority as required by s 90(3A). Section 99K(1) provides that the functions of the Authority are to consider such applications and to make recommendations in respect of them. Those recommendations are made to the Secretary[3] and, in making them, the Authority must comply with relevant rules determined by the Minister under s 99L.[4] They are recommendations whether or not the applicant should be approved under s 90 in respect of particular premises and, if so, whether the approval should be subject to conditions.[5]
[3] NH Act, s 99K(3)
[4] NH Act, s 99K(2)
[5] NH Act, s 99K(1)(b)
On or about 24 April 2008, the Authority made a recommendation to the Secretary that she not approve Mr Ha’s application. It made its recommendation under s 99K(1)(b)(i) of the NH Act.
Section 105AD(2) provided that Mr Ha could apply to the Tribunal for review of the Authority’s decision. As neither that provision nor the NH Act generally varied the time limits prescribed by s 29 of the AAT Act, he had 28 days from the day on which he was given the letter dated 24 April 2008 setting out the terms of the Authority’s decision.[6] He did not make an application within that time.
[6] AAT Act, s 29(2)(a)
As the Authority had recommended that the Secretary refuse Mr Ha’s application and as s 90(3B) provides that she may only grant an approval of an application if the Authority has recommended approval, she was bound to refuse it. Consequently, her delegate refused it in a decision dated 10 June 2008.
Section 105AB(7) provides that an application may be made to the Tribunal for review of the Secretary’s decision refusing an application under s 90. Again, the NH Act had not varied the time limits prescribed in the AAT Act and Mr Ha had 28 days within which to lodge his application. He did not do so.
Mr Ha lodged an application on 8 July 2008 seeking review of the Authority’s recommendation and making no mention of the Secretary’s decision. He paid an application fee of $682 but did not apply for an extension of time within which to lodge his application for review of the Authority’s decision. His attention does not appear to have been drawn to the need to do so. That is understandable on first glance as Mr Ha had written on his application that the Authority’s decision dated 24 April 2008 had been received on 16 June 2008. Mr Ha had, however, attached copies of the separate letters that he had received from the Authority and from Medicare Australia. The first, dated 24 April 2008 and conveying the Authority’s decision had been addressed to him. The second, dated 10 June 2008 was also addressed to him and referred to the Authority’s earlier decision but does not state that the Authority’s letter is enclosed.
On further consideration, it seems to me that Mr Ha would have received the Authority’s letter and so notice of its recommendation shortly after 24 April 2008 but that he waited until he had the Secretary’s decision until he sought review. I am not critical of him for doing that but the result was that his application seeking review of the Authority’s decision was well out of time and he never sought review of the Secretary’s decision. No order was made at that time or since extending the time within which Mr Ha might lodge his application for review of the Authority’s recommendation.
Two conferences of the sort envisaged by s 34(1)(a) of the AAT Act were then conducted. Following the second held on 29 September 2008, the parties asked the Tribunal to make an order under s 42D of the AAT Act remitting the decision dated 24 April 2008 to the Authority. They did so on 17 October 2008.
On 22 October 2008, another member ordered that the Authority’s decision to make its recommendation be remitted to it under s 42D. Such an order may be made at any stage of a proceeding for review of a decision.[7] Once remitted, the Authority may reconsider the decision and may affirm or vary it or set it aside and make a new decision in substitution for the decision set aside.[8]
[7] AAT Act, s 42D(1)
[8] AAT Act, s 42D(2)
On 31 October 2008, the Authority recommended the approval of Mr Ha’s application to supply pharmaceutical benefits from particular premises. Medicare Australia notified Mr Ha of the Authority’s decision in a letter dated
10 November 2008. The Tribunal was given a copy of the letter on 8 December 2008.
The consequences of the Authority’s setting aside the decision are dealt with in s 42D(4) of the AAT Act:
“If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a)the application is taken to be an application for review of the new decision; and
(b)the person who made the application may either:
(i)proceed with the application for review of the new decision; or
(ii)withdraw the application.”
Mr Ha did not withdraw his application but there was no further action taken on the file until 27 February 2009 when Mr Ha contacted the Tribunal’s Registry asking for a refund of his application fee of $682. The matter was referred to me and I held a directions hearing not only to consider Mr Ha’s request but to discuss a number of issues with the parties. Those issues included the fact that the Tribunal still had an unresolved application to review the Authority’s recommendation that it had, on 31 October 2008, substituted for its earlier recommendation and that, for all practical purposes, Mr Ha should have also sought review of the Secretary’s decision refusing to approve his application.
On 8 April 2009, the Secretary sought to be joined as a party to the proceedings as a second respondent. She also consented to an extension of the time within which Mr Ha might lodge an application for review of the decision made by a delegate on her behalf.
Mr Ha lodged an application for review of the Secretary’s decision dated 10 June 2008. He did not expressly ask for an extension of the time within which it could be lodged and so has not met the requirement in s 29(7) of the AAT Act that it be in writing. I have considered whether Mr Ha’s application could be read as impliedly requesting that extension when read against a background of the discussions at the directions hearing and in light of the letter written on behalf of the Secretary by her solicitors on 8 April 2009 that they were:
“… instructed to consent to an extension of time for the applicant to seek a review of in relation to Medicare Australia’s decision (as delegate of the second respondent) of 10 June 2008 …”
I have decided that it cannot be and that, even if it could be, it would not meet the requirement of s 29(7) that it be in writing. Therefore, I asked Mr Ha to lodge an application for an extension of the time within which to lodge his application for review of the Secretary’s decision. It was lodged on 16 April 2009 but I have treated it as applying nunc pro tunc as if it had been made before I made an order extending the time within which the application might be lodged on 9 April 2009.
CONSIDERATION
When may an application fee be refunded?
Regulation 19(7) of the Regulations governs the refund of an application fee. It provides:
“A person who has paid an application fee is entitled to a refund of the fee if:
(a)the fee was not payable; or
(b)the Tribunal certifies that proceedings have terminated in a manner favourable to the applicant.”
As no application lodged for review of the Authority’s recommendation, no application fee payable
Mr Ha has not applied for an extension of the time within which he might lodge an application for review of the Authority’s recommendation. I am unable to read his application as implicitly or necessarily applying for that extension.
As there was no application, the Tribunal did not consider it and make an order extending the time at any stage. As it did not make an order, Mr Ha cannot be regarded as having made an application for review of the Authority’s decision. As he did not lodge an application, no application fee was payable and he has no application to withdraw. That meant that, under r 19(7)(a), he was entitled to a refund of the application fee of $682 that he had paid at that stage.
Application fee of $682 paid by Mr Ha referable to his application for review of the Secretary’s decision
When I made an order extending the time within which Mr Ha could apply for review of the Secretary’s decision, the Tribunal still held the application fee of $682 Mr Ha had paid when lodging his application for review of the Authority’s decision. Administrative action was required to apply that application fee from Mr Ha’s application in respect of the Authority’s recommendation to his application in respect of the Secretary’s decision. That was preferable to refunding the application fee and asking Mr Ha to pay it again.
Principles relevant to consideration of whether proceedings have terminated in a manner favourable to the applicant
The remaining provisions of r 19 do not refer to the word “proceedings”. The power to make r 19 is found in s 70 of the AAT Act. Section 70(1) contains a general regulation making power but a specific power in relation to fees is found in s 70(2):
“Without limiting the generality of subsection (1):
(a)the regulations may make provision:
(i)prescribing fees to be payable in respect of applications to the Tribunal; and
(ia)prescribing fees to be payable in respect of the taxation of costs ordered by the Tribunal to be paid; and
(ii)for or in relation to the refund, in whole or in part, of fees so paid where the proceeding terminates in a manner favourable to the applicant; and
(b)regulations prescribing fees may:
(i)prescribe fees in respect of a particular class or classes of applications only; and
(ii)prescribe different fees in respect of different classes of applications.”
It is interesting to note that s 70(2)(a)(ii) refers to a “proceeding” and not to “proceedings”. The use of the word “proceeding”, rather than “proceedings”, is consistent with the fact that fees are payable in respect of “applications to the Tribunal”[9] and the taxation of costs ordered by the Tribunal. The word “proceeding” is defined in s 3(1) of the AAT Act to include the various applications it sets out:
[9] AAT Act, s 70(2)(a)(i)
“In this Act, unless the contrary intention appears:
…
proceeding, in relation to the Tribunal, includes:
(a)an application to the Tribunal for review of a decision; and
(b)an application to the Tribunal under subsection 28(1AC); and
(c)an application to the Tribunal for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid; and
(d)an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981; and
(e)an application to the Tribunal under subsection 62(2) of the Freedom of Information Act 1982; and
(f)any other application to the Tribunal under this Act or any other Act; and
(g)any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and
(h)an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.”
In prescribing fees, r 19 has imposed fees for lodging three of the sorts of applications referred to in the definition of “proceeding”:
“Subject to this regulation, a fee of $500 (in this regulation called an application fee) is payable for lodging with the Tribunal of:
(a)an application for review of a decision, other than a relevant taxation decision within the meaning of Part IIIAA of the Act; or
(b)an application under subsection 28(1AC) of the Act; or
(c)an application under subsection 62(2) of the Freedom of Information Act 1982;
other than an application for review of a prescribed decision.”
Decisions coming within the description of “prescribed decisions” are those set out in Schedule 3 to the Regulations[10] but do not include decisions made under the NH Act.
[10] Regulations, r 19(2)
Having regard to the regulation-making power, it seems to me that the word “proceedings” used in r 19(7) is intended to refer to the particular application or taxation of costs in respect of which the fee was paid. It is not intended to have any more general meaning.
The word “terminate” means “to bring or come to an end”.[11] Therefore, when r 19(7)(b) provides that a person is entitled to a refund of the application fee if the Tribunal certifies that the proceedings have terminated in a manner favourable to the applicant, the Tribunal must first certify that the application or the taxation of costs ordered by the Tribunal to be paid has ended in a manner favourable to the applicant. The word “applicant” is the word also used in the regulation-making power conferred by s 70(2)(a)(ii). It is a word that sits comfortably with the imposition of fees for the lodgement of applications for review of decisions, under s 28(1AC) of the AAT Act and under s 62(2) of the Freedom of Information Act 1982. It sits less comfortably with the prescription of fees payable in respect of the taxation of costs ordered by the Tribunal to be paid by one party to a proceeding to another. The procedure for taxing costs is set out in s 69A of the AAT Act and it may be that taxation of the costs will not be sought by the applicant to the application for review in relation to which the costs were ordered but by the respondent. Presumably, the word “applicant” will need to be read as referring to the person seeking taxation and paying the fee but that must remain a problem to be solved at a later date should fees be imposed in respect of taxations of costs.
[11] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
What is meant by the word “favourable” in the context of the proceedings’ having terminated “in a manner favourable to the applicant”? The word was considered by Toohey J in Donovan v Repatriation Commission.[12] He did so in the context of s 107VZB of the Repatriation Act 1920 which provided that, where a decision of the Repatriation Review Tribunal (RRT) had been favourable to the applicant, the Repatriation Commission could submit further evidence and ask that Tribunal to rehear the proceeding.[13] Mrs Donovan had been granted a war widow’s pension but it had not been backdated to the date she had sought. Toohey J considered briefly whether a decision favourable to the applicant had to be a decision that was, in all respects, favourable. Toohey J noted that “The Shorter Oxford English Dictionary defines ‘favourable’, in relation to an answer as that which ‘concedes what is desired.”[14] He also noted that s 107VZB presupposed that there was something in the decision that the Repatriation Commission would want to challenge. Although it was unnecessary for him to decide the matter as the case was decided on another, his Honour thought that “A decision granting a pension is … a decision favourable to an applicant and is therefore within the language of the opening words of s 107VZB.”[15] That was so even though Mrs Donovan had not been conceded all that she had desired.
[12] (1985) 58 ALR 634
[13] (1985) 58 ALR 634
[14] (1985) 58 ALR 634 at 638
[15] (1985) 58 ALR 634 at 638
I have looked also at the ordinary meanings of “favourable” in other
dictionaries:
“… 1 showing or giving agreement or consent. 2 pleasing; likely to win approval. 3 (favourable to someone) advantageous or helpful to them; suitable. …”[16]
“… 1. affording aid, advantage, or convenience: a favourable position.
”[17]
2. manifesting favour: inclined to aid or approve. 3. (of an answer) granting what is desired. …
[16] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[17] Macquarie Dictionary, 3rd edition, 1997
As I said in an earlier case of Re Kong and Minister for Immigration and Multicultural and Indigenous Affairs,[18] it seems to me that the question that Toohey J had to consider in Donovan v Repatriation Commission was a slightly different question from that which I am required to answer in the context of r 19(7) of the Regulations:
“… I do not have to consider whether an applicant has had a favourable answer to the application so much as whether the proceedings terminated in a manner favourable to that applicant. Perhaps the result is the same but it seems to me that whether they have terminated in that way depends on whether they have terminated in a manner that is advantageous or helpful to the applicant. Putting that another way, they have come to an end and have done so in a way that advantages or helps the applicant. Advantaging or being helpful, and so favouring an applicant, does not equate with total success. Some advantage or help is sufficient.”[19]
[18] [2005] AATA 552
[19] [2005] AATA 552 at [14]
The focus of the question that must be asked under r 19(7) is upon the outcome of the termination. I feel that I would be hard pressed to conclude that a withdrawal of an application could be regarded as a conclusion to an application that is favourable to an applicant. It may be that there are arrangements made between the parties that are satisfactory and even favourable to an applicant but it is difficult to say that the application that is the proceeding has terminated in a manner favourable to him or her. What happens between the parties beyond the scope of the application is just that: beyond its scope and so not relevant in determining whether the application has terminated in a manner favourable to the applicant.
In this case, the proceedings, being the application for review of the Secretary’s decision, have terminated in a manner favourable to Mr Ha. They have done so because they have ended in Mr Ha’s having the Secretary’s decision set aside. In its place, he has obtained a decision approving his application under s 90 of the NH Act for the purpose of supplying pharmaceutical benefits at premises at which he had chosen to open a pharmacy. This is an outcome that is advantageous to him so leading me to conclude that I should certify that the proceedings have terminated in a manner favourable to Mr Ha. Therefore, I so certify. The effect of r 19(7)(b) is that Mr Ha is entitled to a refund of the application fee.
I certify that the thirty three preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed: ...............................................................
Kate Conners Associate
Date of Hearing 9 April 2009
Date of Decision 1 May 2009
Representative for the Applicant unrepresented
Representative for the Respondents Ms Elizabeth Ryan
Solicitor for the Respondent Australian Government Solicitor
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