Ho v Minister for Health

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FEDERAL COURT OF AUSTRALIA

Ho v Minister for Health [2024] FCA 657

File numbers: NSD 15 of 2024
NSD 16 of 2024
NSD 17 of 2024
Judgment of: PERRY J
Date of judgment: 21 June 2024
Catchwords:

ADMINISTRATIVE LAW – statutory construction – decision of the Minister for Health under s 90B(4) not to consider a request for the Minister to substitute a decision of the Secretary of the Department of Health and Aged Care refusing an application for approval to supply pharmaceutical benefits at a particular premises with a decision approving the application – whether the Minister misunderstood the statutory test in s 90B(4) in considering the prospects of the request at the stage of deciding whether to consider the request – where in Hanna v Minister for Health [2013] FCA 303 held there was no implied limitation on the scope of matters which the Minister may consider when making a decision under s 90B(4) and therefore, the merits of the request was open to consideration – Held: application dismissed

PRACTICE AND PROCEDURE – summary of principles regarding when a single judge of this Court is asked to depart from an earlier single judge decision of this Court – consideration of principles of judicial comity and whether a decision is clearly and plainly wrong – Held:  the applicants failed to establish the decision in Hanna was clearly and plainly wrong – where Hanna clearly correctly decided
Legislation:

Acts Interpretation Act1901 (Cth) s 15AA

Administrative Decision (Judicial Review) Act 1977 (Cth) ss 13(1), 16

National Health Act 1953 (Cth) ss 90, 90A, 90B
Cases cited:

Angelos v Minister for Health [2014] FCA 706; (2014) 226 FCR 275

Freedom Pharmaceutical Pty Ltd v Minister for Health [2022] FCAFC 123; (2022) 293 FCR 494

Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1

Hanna v Minister for Health [2013] FCA 303

Kong v Minister for Health [2014] FCAFC 149; (2014) 227 FCR 215

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 73 ALD 1

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; (2021) 287 FCR 181

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379

Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150

Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority [2020] FCAFC 163; (2020) 280 FCR 397
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 49
Date of last submissions: 4 June 2024
Date of hearing: 6 June 2024
Counsel for the Applicants: Mr J Horton KC; Mr T…
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Details
Case
[2024] FCA 657
Decision Date

CaseChat Overview and Summary

The applicants, Mr Ho and Ms Young, sought judicial review of a decision by the Minister for Health under s 90B(4) of the National Health Act not to consider their request for the Minister to substitute a decision of the Secretary of the Department of Health and Aged Care, who had refused their application for approval to supply pharmaceutical benefits at a particular premises, with a decision approving the application. The Federal Court was required to determine whether the Minister misunderstood the statutory test in s 90B(4) when considering the prospects of the request at the stage of deciding whether to consider the request. The Court was also required to consider whether the applicants had established that the decision in Hanna v Minister for Health [2013] FCA 303 was clearly and plainly wrong.

The Court found that the applicants had not established that the decision in Hanna was clearly and plainly wrong. It held that the decision in Hanna correctly determined that there was no implied limitation on the scope of matters which the Minister may consider when making a decision under s 90B(4) and therefore, the merits of the request were open to consideration. The Court also found that the applicants had failed to establish the decision in Hanna was clearly and plainly wrong. The Court held that the principles of judicial comity and the need to avoid departing from earlier decisions of this Court without good reason applied. The applicants had not demonstrated that the decision in Hanna was clearly and plainly wrong.

The Court dismissed the applications. It held that the applicants had not established any of the grounds of review and that the decision in Hanna correctly decided the issue of whether the Minister was required to consider the merits of the request at the stage of deciding whether to consider the request. The Court ordered that the applicants were to pay the respondent's costs as agreed or taxed.

Orders

Orders of the court

1. The application is dismissed.

2. The applicants are to pay the respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons set out below, I do not consider that the decision in Hanna was clearly and plainly wrong, and should not be followed. The applicants have therefore not established ground 1 of their applications. Nor is ground 2 established in circumstances where the applicants did not address the ground either orally or in writing, noting that counsel for the applicants explained at the hearing that their submissions were directed to ground 1: Transcript (T)-‍3.44. In any event, as pleaded, ground 2 appears to have been intended to raise essentially the same issues as those with respect to ground 1 and therefore would have failed for the same reasons. This is because ground 2 alleged that the Minister’s decision under s 90B(4) was unreasonable “in that the Minister both considered the Applicant’s request and decided not to consider it.” It follows that the application in each matter must be dismissed.2. BACKGROUND The parties were agreed that the three applications have substantially similar backgrounds (as seen below). The only potentially material difference between the material facts underlying each of the applications for judicial review was that in Ghosn, the Ministerial submission referred only once to the Department wishing to put further information before the Minister in the event that he decided to consider the request made by the applicants under s 90A of the National Health Act, whereas there are multiple references in the Ministerial submissions in the other two matters to the need to obtain further information in that eventuality.2.1 The Ho application On 31 May 2023, the applicants in Ho, Mr Ho and Ms Young, applied for approval to supply pharmaceutical benefits at the proposed premises at LG5, Belconnen Markets, 2 Ibbott Lane, Belconnen ACT 2617 by relocating an existing approved pharmacy premises. On 11 July 2023, the Australian Community Pharmacy Authority recommended to the delegate of the Secretary that the application not be approved. On 25 July 2023, the Secretary’s delegate rejected the application. On 30 August 2023, the applicants requested under s 90B(1) that the Minister exercise his discretionary power under s 90A(2) of the National Health Act to approve the supply of pharmaceutical benefits at the proposed premises. On 20 November 2023, the Minister’s office was provided with a detailed submission titled ‘Ministerial Discretion Request (Stage 1) - Belconnen, ACT’. The submission set out the factual background to the request and summarised the applicants’ submissions, a copy of which was attached to the submission together with supporting documents. With respect to some of the topics covered by the Ministerial submission, the Department explained that, if the Minister decided to consider the request, the Department would seek further information and invite comment from other potentially interested persons. The Ministerial submission also set out findings of fact based on the material in the Ministerial submission, including research by the Department, which it would be open to the Minister to make in determining whether to substitute the Secretary’s decision refusing approval with an approval decision under s 90A(2).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, s 90B of the National Health Act provides that:(1)If section 90A applies to a decision of the Secretary under section 90 rejecting an application by a pharmacist, the pharmacist may, in writing, request the Minister to exercise the Minister’s power under subsection 90A(2) in respect of the Secretary’s decision.(2)The Minister may determine the form in which a request under subsection (1) must be made and, if the Minister does so, such a request must be made in that form.(3)A request under subsection (1) must be made:(a) within 30 days after the pharmacist is notified of the Secretary’s decision; or(b) if the pharmacist has applied to the Administrative Appeals Tribunal for review of the Secretary’s decision—within 30 days after:(i)the pharmacist is given a copy of the Administrative Appeals Tribunal’s decision affirming the Secretary’s decision; or(ii)the application has been discontinued, withdrawn or dismissed or(c)if the pharmacist has sought an order from a federal court in respect of the Secretary’s decision or a decision of the Administrative Appeals Tribunal affirming the Secretary’s decision—within 30 days after:(i)the court has made an order affirming the Secretary’s decision or the Administrative Appeals Tribunal’s decision, as the case requires; or(ii)the court proceeding has been discontinued, withdrawn or dismissed.(4)The Minister must, within 3 months after receiving a request under subsection (1), personally decide whether to consider the request. If the Minister has not made a decision within this period, the Minister is taken to have decided not to consider the request.(5)If the Minster decides to consider a request under subsection (1), the Minister must, within 3 months after making that decision, personally decide whether to exercise the power under subsection 90A(2) in respect of the Secretary’s decision. If the Minister has not made a decision within this period, the Minister is taken to have decided not to exercise the power under subsection 90A(2) in respect of the Secretary’s decision.(6)The Secretary must, by notice in writing, advise the pharmacist of:(a) the decision made, or taken to have been made, by the Minister under subsection (4); and(b) if applicable, the decision made, or taken to have been made, by the Minister under subsection (5).3.3 The decision in Hanna In Hanna, Jagot J analysed the decision-making process in ss 90A and 90B of the National Health Act as being comprised of two, and possibly three, stages as follows (at [8] and [10]–‍[11]):In the first stage, fixed by s 90B(4), the Minister must, within 3 months after receiving the request, personally decide whether to consider the request. Hence, for the period of 3 months as specified the Minister is subject to a statutory duty to make a decision whether or not to consider the request. After the expiry of the 3 months the Minister is no longer subject to that duty. Further, if the Minister does not make a decision within the 3 months the Minister is deemed to have decided not to consider the request.…In the second stage, fixed by s 90B(5), the Minister must, “within 3 months after making [a decision to consider a request under subsection (1)] personally decide whether to exercise the power under subsection 90A(2) in respect of the Secretary’s decision.” Hence, if the Minister has decided to consider a request under s 90B(4), then for the period of 3 months from the making of that decision, the Minister is subject to a statutory duty to make another decision whether to exercise the power under s 90A(2). After the expiry of the 3 months the Minister is no longer subject to that duty. Further, if the Minister does not make a decision within this further period of 3 months the Minister is deemed to have decided not to exercise the power under s 90A(2). … In the third stage, fixed by s 90A(2), if the Minister has decided to exercise the power under s 90A(2) as contemplated by s 90B(5) then the Minister may substitute for the Secretary’s decision a decision approving the pharmacist for the purpose of supplying pharmaceutical benefits at the particular premises if the Minister is satisfied about the two nominated matters. But as s 90A(5) discloses the Minister does not have a duty to consider whether to exercise the power under s 90A(2) in respect of the Secretary’s decision. In other words, the power in s 90A(2) is both discretionary and non-‍compellable. The Minister was thus never under a duty to consider whether to exercise the power under s 90A(2).

Ratio Decidendi

Legal Principle Established

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