Holzberger and Secretary, Department of Health and Ageing

[2006] AATA 769

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 769

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/435

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUSANN HOLZBERGER

Applicant

And SECRETARY, DEPARTMENT OF HEALTH & AGEING 

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date8 September 2006 

PlaceBrisbane

Decision

The Tribunal:

(a) varies the decision under review such that it is not to come into operation until midnight on 8 December 2006;

(b)  otherwise affirms the decision under review.

.................Signed...............

Deputy President

CATCHWORDS

HEALTH AND COMMUNITY SERVICES – pharmaceutical benefits scheme – cancellation of approval – not carrying on business as a pharmacist at the approved premises – exercise of discretion to cancel under s 98(3) National Health Act 1953 – Tribunal varies the decision under review

Pharmacists Registration Act 2001 (Qld)

National Health Act 1953 (Cth) ss 4, 86, 87, 90(1)(2)(3), 98(3), 95

Administrative Appeals Tribunal Act (Cth) ss 41(2), 43(5B)

Health Regulations 1996 (Qld) Reg 23(1), Reg 24

Freeman v Secretary, Department of Social Security (1998) 19 FCR 342

Comptroller – General of Customs v Administrative Appeals Tribunal (1994) 123 ALR 140

Griffith and Migration Agents Registration Authority [2001] AATA 240

CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384

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

Ferguson v FCT (1979) 37 FLR 310

Thomas v FCT (1972) 46 ALJR 397

Civil Aviation Safety Authority v Allan (2001) 114 FCR 14

REASONS FOR DECISION

8 September 2006  Deputy President P E Hack SC    

Introduction

1.Mrs Susann Holzberger is a pharmacist. She is registered as a pharmacist in Queensland pursuant to the provisions of the Pharmacists Registration Act 2001 (Qld).

2.On 27 January 2006 the respondent, the Secretary of the Department of Health and Ageing (by a delegate), approved Mrs Holzberger for the purpose of supplying pharmaceutical benefits at or from premises described as Shop 1.02, 119 Melbourne Street, South Brisbane. That approval was given in accordance with the provisions of s 90(1) of the National Health Act 1953 (Cth).

3.On 28 June 2006 the respondent determined to cancel that approval with effect from 30 June 2006. That step was taken in reliance upon s 98(3) of the National Health Act and on the basis that the respondent was satisfied that Mrs Holzberger was not carrying on business as a pharmacist at the approved premises.

4.Mrs Holzberger sought a review of that decision in this Tribunal and stay of its implementation. On 13 July 2006 I ordered, pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), that implementation of the decision not take effect until hearing and determination of this application.[1]

[1] See [2006] AATA 621

Background

5.There is little dispute regarding the primary facts. Mrs Holzberger has been registered as a pharmacist for more than 25 years. In January 2001 she purchased a pharmacy known as Highgate Hilltop Pharmacy at 111 Gladstone Road, Highgate Hill. It was a small pharmacy with, as Mrs Holzberger puts it, a deteriorating performance. Mrs Holzberger knew, when she bought it, that the Highgate Hilltop Pharmacy was not sustainable in the mid to long term. At that time she anticipated that at some point she would close that pharmacy, cancel its approval and use the cancellation to support an application for another approval of other premises in the West End South Brisbane area, the process known as “relocation of an approval”.

6.In late 2000 the West End Markets Shopping Centre opened at Boundary Street West End. It contained a Coles Supermarket and more than 20 other commercial establishments and shops. It opened without a pharmacy as a tenant. Mrs Holzberger considered the West End Markets Shopping Centre to be an ideal site for a pharmacy.

7.For a number of years there have been rules in place that govern where approved pharmacies may be located. In 2001 the source of the rules was the Third Community Pharmacy Agreement, an agreement between the Commonwealth of Australia and the Pharmacy Guild of Australia. It is unnecessary for present purposes to examine those rules closely; it will suffice to note that when Mrs Holzberger purchased Highgate Hilltop Pharmacy she could not, and she knew that she could not, relocate an approval from the Highgate Hilltop Pharmacy to a new pharmacy at West End Markets.

8.That was because the rules governing relocations permitted relocation within 1.5 km of the original site, but in the 1 km to 1.5 km range that was subject to a proviso that there not be any other approved pharmacy within 0.5 km of the proposed new site. There was an approved pharmacy less than 0.5 km from West End Markets and more than 1 km from Highgate Hilltop Pharmacy.

9.These rules were expressed to be transitional and were to be reviewed on 30 June 2004. Mrs Holzberger was hopeful that in any review the transitional rules would be abolished. But, in any event, she was confident that when the Third Community Pharmacy Agreement expired on 30 June 2005 the replacement agreement would relax the “large shopping centre” rule such that West End Markets would be classed as a large shopping centre and she could relocate her approval to West End Markets when that happened.

10.Confident that these changes would occur, Mrs Holzberger commenced to trade from a shop in the West End Markets Shopping Centre. Mrs Holzberger describes those premises as “West End Markets Pharmacy” and I shall continue to use that description. Mrs Holzberger did not seek approval of those premises pursuant to s 90 of the National Health Act. Consequently, when a patient presented a prescription at West End Markets Pharmacy the prescription was driven to Highgate Hilltop Pharmacy, dispensed there and either returned to West End Markets Pharmacy for provision to the patient or delivered directly to the patient. Claims upon the Commonwealth for payment for pharmaceutical benefits supplied in this way were made from the Highgate Hilltop Pharmacy.

11.Mrs Holzberger’s hopes about a relaxation of the relocation rules were not fulfilled. The review of the transitional rule to be undertaken by 30 June 2004 did not take place. The Fourth Community Pharmacy Agreement did not come into effect on 1 July 2005 but was delayed until mid-November 2005. And when it was published it became apparent to Mrs Holzberger that the approval of Highgate Hilltop Pharmacy could not be relocated to West End Markets Pharmacy and that there was no realistic opportunity to do so until at least 30 June 2010 when the Fourth Community Pharmacy Agreement expired. Mrs Holzberger considered that the only option for her to obtain approval for the West End Markets Pharmacy was to relocate to premises closer to West End Markets Shopping Centre and then relocate again two years thereafter.

12.Mrs Holzberger set about finding and investigating alternative premises. Eventually she determined to use the premises at Shop 1.02, 119 Melbourne Street, South Brisbane. I describe those premises, and the manner in which they are used, in some little detail below. On 15 December 2005 Mrs Holzberger took a lease of the premises.

13.The respondent’s approval was given to this relocation on 27 January 2006. Mrs Holzberger thereafter vacated the Highgate Hilltop Pharmacy and set up the premises at 119 Melbourne Street.

The Business Premises

14.Mrs Holzberger describes the premises at Shop 1.02, 119 Melbourne Street as the West End Dispensary. Again I shall adopt her description.

15.The building where the West End Dispensary is situated is a two storey building in a commercial area. Within the building are tenancies occupied by, at least, an architect and a firm of solicitors.

16.The West End Dispensary is on the ground floor of the building, at the rear of the premises. There are two means of access. One may enter the building from Melbourne Street, ascend a set of stairs to the first floor, walk along a corridor, descend another flight of stairs back to the ground floor and the West End Dispensary is to be found within an enclosed area near the foot of the stairs.

17.The area occupied by the West End Dispensary was formerly a storeroom and, in part of it at least, there remain files from the solicitor’s practice. Mr Hanks QC, who led Mr Stephenson for the respondent, placed some reliance upon the presence of the remaining files, and I will return to that issue presently.

18.The West End Dispensary occupies an area of some three metres by three metres. It is furnished with a table, chairs and shelves. There are two computers, two printers and quantities of drugs. I find that the area, as at 28 June 2006, satisfied the requirements of Reg 23 (1) of the Health Regulations 1996 (Qld). So far as I was able to tell when I inspected the premises with the parties and their representatives they met the standards prescribed by Reg 24 of those Regulations. I infer from the evidence of Mrs Holzberger that that was the case as at 28 June 2006.

19.There is a sign in the West End Dispensary that proclaims that its opening hours are 11am to 3pm Mondays to Fridays but the sign is not visible to anyone not inside the West End Pharmacy. By and large during those times Mrs Holzberger is on the premises or making collections from, or deliveries to, the West End Markets Pharmacy. There is a distance of approximately 375 metres between the West End Dispensary and the West End Markets Pharmacy. It takes between 4½ and 5½ minutes to walk from one to the other depending upon traffic and traffic lights.

20.West End Dispensary can, at least in theory, be accessed from Fish Lane which is at the rear of the building but the back door is permanently locked and can be accessed only by tenants with keys. The West End Dispensary is not visible from Melbourne Street and is barely visible from outside the building at the rear. There is no external indication of the presence of the West End Dispensary.

21.As it seems to me I should proceed upon the footing that Mrs Holzberger does not intend to interact with the public at the West End Dispensary. She may, on exceptional occasions, deal with another tenant as a patient but that is truly an exception.

22.The West End Markets Pharmacy has about it all the appearance of a conventional pharmacy in a shopping centre. The front of the shop has displays of the myriad of items that are sold in pharmacies – non-prescription medicines, hair products, soaps, perfumes, items of clothing and the like. At the rear of the shop is a counter and behind that a bench where some stocks of drugs are held.

23.Leaving aside the exceptional prescription dispensed to another tenant of 119 Melbourne Street, prescriptions that are dispensed at the West End Dispensary come from two sources.

24.Some are presented by patients at the West End Markets Pharmacy. During the “trading hours” of the West End Dispensary those patients are told that there will be a delay of 10 to 15 minutes. Outside those hours they will be informed of a much greater wait, perhaps overnight.  Some are unconcerned by that, others go elsewhere. The prescriptions are taken to the West End Dispensary, dispensed by Mrs Holzberger and returned to the West End Markets Pharmacy for delivery to the patients and completion of the transaction.

25.Importantly, there is always a pharmacist on hand at the West End Markets Pharmacy to deal with those patients who want, or need, assistance from a qualified pharmacist.

26.The other group of prescriptions that are dispensed are those where Mrs Holzberger holds the prescriptions of the patients. The patients are predominately older patients who live in the vicinity of the old Highgate Hilltop Pharmacy. Mrs Holzberger has a number of patients who answer this description. The prescriptions of these patients are held at the West End Dispensary and are dispensed as required and delivered to the patients’ homes by Mrs Holzberger.

27.In looking, in an overall sense, at the way in which the two premises operate it seems to me that the situation is analogous to a conventional pharmacy layout where the dispensing is undertaken in a back area or room, an area or room not ordinarily accessible to the public. But, in this case, the dispensary is separated from the other part of the shop by a distance of some 375 metres.

The Legislation

28.It is now necessary to make reference to certain provisions in the National Health Act.

29.The term pharmacist is defined in s 4 of the Act as meaning:

A person registered as a pharmacist or pharmaceutical chemist under a law of a State or Territory providing for the registration of pharmacists or pharmaceutical chemists …

30.By virtue of s 86 of the Act a person who is an eligible person (essentially any Australian resident) who is receiving medical treatment by a medical practitioner or dental treatment by a participating dental practitioner is entitled to receive pharmaceutical benefits without the payment of any consideration other than the fee prescribed by s 87, presently $4.60 for “concessions” and $28.60 otherwise.

31.Section 90(1) has significance in this case. It provides:

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.

It was, of course, the premises at 119 Melbourne Street that are the approved premises here; the premises at the West End Markets Shopping Centre are not approved premises.

32.On the argument advanced by Mr Logan SC, who appeared for Mrs Holzberger, it is material to note, as well, s 95. That section empowers the Minister to, inter alia, revoke an approval given under s 90. But that step may only be undertaken after investigation and report by a Committee of Inquiry, a body set up under Part VIII of the Act. It is a process, in effect, of peer review.

33.Finally it is relevant to note s 98(3). It provides:

Where the Secretary is satisfied that an approved pharmacist is not carrying on business as a pharmacist at premises in respect of which the pharmacist is approved, the Secretary may (at his or her discretion), by notice in writing to the pharmacist, cancel the approval of the pharmacist under section 90.

The Issues For Determination

34.Having regard to the way in which the case was conducted the issues that arise for determination are these:

(1) what is the proper construction of s 98(3)?

(2) what is required to carry on business as a pharmacist?

(3) if Mrs Holzberger was not carrying on business, should the discretion be exercised favourably to her?

35.Before dealing with these issues I should note that it was accepted on both sides that the relevant date for determining the factual question was the date of the decision not the date of hearing. That was so because the decision under review was a decision to cancel.[2]

[2]See e.g. Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; Comptroller – General of Customs v Administrative Appeals Tribunal (1994) 123 ALR 140 and Griffiths and Migration Agents Registration Authority [2001] AATA 240.

The Construction Issue

36.The argument for the respondent emphasised the context in which s 98 is found. In particular, it was submitted that Mrs Holzberger cannot be treated as carrying on business as a pharmacist at West End Dispensary if:

·she was not supplying pharmaceutical benefits on demand at or from those premises (cf. s 90(1) of the National Health Act); and

·the substantial and primary function of West End Pharmacy was to support the supply of pharmaceutical benefits at or from other non-approved premises (cf. s 90(2) and 90(3) of the National Health Act.)

37.On behalf on Mrs Holzberger, Mr Logan submitted that s 98 needed to be construed conscious of the two regimes for the termination of a s 90 approval:

·revocation by the Minister under s 95, the focus of which is primarily on the practitioner, and

·cancellation under s 98, the focus of which is primarily on the premises and only coincidentally on the practitioner.

38.The settled approach is that statutory provisions are to be construed in context so that there is consistency with the language and purpose of all the provisions of the statute.[3] But doing so in the present case does not, in my view, require me to read s 98 in the manner submitted by the Secretary. The words of s 98 are simple enough and pose a simple enough test – was Mrs Holzberger carrying on business as a pharmacist at the West End Dispensary on 28 June 2006. To my mind that enquiry is informed by the question of what carrying on a business of a pharmacist entails. I accept Mr Logan’s argument regarding the two regimes. It is important, in my view, that the legislature has created those two regimes and significant that s 98 uses the phrase “carrying on business as a pharmacist”, a phrase not qualified in any way by reference to other criteria.

[3]CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2, [69]-[71].

39.It is, in my view, neither necessary nor desirable to engraft onto that question issues of supply on demand and other concepts imported from other provisions of the Act or, indeed, from provisions of the legislation of other polities.

The Content Of Carrying On A Business

40.The notion of carrying on a business is well-known in the context of revenue law.[4] It is a test that does not make success a determining factor.[5] What then is involved in carrying on business as a pharmacist?

[4]        See e.g.  Ferguson v FCT (1979) 37 FLR 310, 314.

[5]        Thomas v FCT (1972) 46 ALJR 397, 400-1.

41.It may be useful, at the outset, to put aside that which it is not. It is not, in this statutory context, the other retail activities commonly undertaken at pharmacies – the sale of cosmetics, soaps, clothing and the like. And it is not the sale of medicines as such. In the context of the National Health Act, and having regard to the constitutional limitations upon the Commonwealth, the business of a pharmacist must be the business of providing pharmaceutical benefits to those entitled to receive them.

42.That involves, undoubtedly, the preparation and dispensing of drugs and medicinal preparations. Dispense, in this sense, I take to mean making up medicine according to a prescribed formula although, as Mrs Holzberger points out in her evidence, that art is rarely practised these days by pharmacists. Instead, medicines are already compounded, the task of the pharmacist, so far as dispensing is concerned, seems generally to be limited to one of selecting the appropriate pre-packed container of medicine and applying a label to it in accordance with the prescription.

43.But to regard that task as the only task of the pharmacist would be to relegate the role of the pharmacist to that of clerk. In my opinion the business of a pharmacist is much more than the mere mechanical process of selecting and labelling a container of appropriate medicine. Given the nature of the task of providing medicines the ambit of the task must, I consider, involve interaction with the patient (or the patient’s agent) at the start of the process when the prescription is handed in and at the end of the process when the medicines are given to the patient and any necessary payment made.

44.I do not, however, suggest that the interactions with the patient at the start and end of the process need necessarily be with a qualified pharmacist. Frequently, I imagine, it would be with a sales assistant with training in pharmacy matters. But that would be done under the overall supervision of a qualified pharmacist.

45.The nature of the task of dispensing and the role of a pharmacist within that task is illustrated by the Australian Pharmaceutical Formulary and Handbook, 15^th ed., published by the Pharmaceutical Society of Australia. On the Secretary’s case, compliance with the standards of practice set out in the sections of that work entitled “Dispensing Practice” and “Counselling and Additional Instructions for Dispensed Medicines” is a condition of approval of pharmacists for the purposes of Part VII of the National Health Act.

46.What appears in the Handbook at pages 8, 10 and 47 is the following:

DISPENSING PROCEDURE

Pharmacists are strongly advised to observe the following procedures on each occasion that a prescription is dispensed.

-   On presentation of the prescription, confirm the name and age of the patient, statutory details and the validity of the prescription.

-   Check past mediation history for any contraindications, drug interactions, and evidence of abuse or poor compliance.

-   Check that the dosage ordered is appropriate.

-   Contact the prescriber if necessary.

-   Record the medication(s) on the patient’s drug profile.

-   When selecting the mediation(s), check the drug, strength and quantity against the prescription. DO NOT read the repeat authorisation as a prescription.

-   Check the expiry date of the product.

-   Ensure that full directions are clearly stated on the label. The label should contain both the drug and trade names (if applicable) together with the strength of the dosage form. The drug names can be omitted from the pharmacist’s label provided this information is contained on the manufacturer’s expiry date or batch number.

-   Prior to attaching the labels, recheck the product against the prescription.

-   Attach ancillary labels to the immediate container if appropriate.

-   Place the dispensed medication(s) in a bag (preferably a clear plastic bag to aid in the identification of the contents) labelled with the patient’s name.

-   When issuing the medication(s), validate the correct patient or agent, recheck against the prescription and counsel on the safe and effective use of the product. [page 8]

Patient counselling

The pharmacist must ensure as far as possible that medicines are taken in such a manner that the patient receives the required therapeutic effect of the drug. Adequate counselling is essential. Counselling should be done verbally, and should be reinforced by attaching written instructions to the immediate container of the dispensed medicine whenever applicable, (see page 47). The use of information sheets on the correct use of the product is encouraged. [page 10]

COUNSELLING AND ADDITIONAL INSTRUCTIONS FOR DISPENSED MEDICINES

The pharmacist is to counsel the patient to ensure that the desired therapeutic effect from medication is achieved and that the incidence of preventable side effects is minimised. Counselling of the patient implies the communication of all information that would encourage this outcome. Counselling is to be reinforced with written instructions including those attached to the immediate container of dispensed medicines wherever practicable. Written instructions are not to replace verbal counselling. Pharmacists may use their knowledge and professional discretion to decide to omit one or more of the labels (except for those drugs for which State laws require that certain advisory labels be attached, e.g. Label 1). The prescriber may recommend that an advisory label not be used but in this circumstance the prescription should specify the exact requirement.

Patients should be advised to take medications intended for use by the oral route with a glass of water while in the upright position whenever possible.

The most common requirement for written reinforcement of counselling are included in the following ancillary labels and additional instructions scheme. [page 47]

47.I should make it plain that I do not accept the Secretary’s argument as to the use of this material. I do not use it to determine whether Mrs Holzberger is, or is not, complying with the conditions of her approval or, for that matter, complying with the standards in the Handbook. I accept, as Mr Logan submits, that s 95 of the National Health Act, provides the mechanism for dealing with that issue. But it seems to me that the material extracted provides a basis upon which I can determine what is generally accepted by pharmacists as being involved in the task of a pharmacist when dispensing medicines. The extract from the Handbook makes it plain that dispensing medicine, and thus the business of a pharmacist, involves much more than the mechanical selection of a medicine and the application of a label.

48.This material enables me to conclude that the business of a pharmacist encompasses both the initial and concluding dealings with the patient or the patient’s agent as well as the purely dispensing process that occurs between those dealings. It matters not that a sales assistant may undertake those dealings. Where that happens, it happens under the supervision of the pharmacist.

Was Mrs Holzberger Carrying On Business As A Pharmacist

49.It is plain that, except in the most unusual case of another tenant wanting a prescription filled, patients did not attend upon the West End Dispensary. Other than in instances where the prescriptions are held at the West End Dispensary patients attend at the West End Markets Pharmacy. The dealings with patients when the prescription is handed over to the sales assistant or pharmacist and when it is collected are undertaken at the West End Markets Pharmacy. Only the purely dispensing function is undertaken at the West End Dispensary.

50.It follows that, on the view that I take as to the ambit of what is meant by the expression carrying on business as a pharmacist, Mrs Holzberger was not carrying on business as a pharmacist at the West End Dispensary on 28 June 2006.

51.I should add that I have not found it necessary, in coming to that conclusion, to consider the Secretary’s arguments about what is required to carry on business as a pharmacist. The Secretary submits that a number of matters must be shown before it could be concluded that a pharmacist was carrying on business at particular premises. It was submitted:

·that a reasonable stock of pharmaceutical products should be kept on the premises;

·that the premises ought be open to the public during normal business hours;

·that it should be apparent from the outside of the premises, including by signs indicating normal opening hours, that a pharmacy is being conducted.

52.So far as the first of these matters are concerned the evidence does not lead me to the conclusion that Mrs Holzberger did not have a “reasonable” stock on hand at the West End Dispensary. Absent some evidence of what ought be regarded as “reasonable” I am left with the evidence of Mrs Holzberger (which I accept) that the stocks of drugs on hand at the West End Dispensary were adequate to meet the demands of average days.

53.But even were I to have found that Mrs Holzberger had not kept a reasonable supply of pharmaceutical products on hand I would not regard that conclusion, nor the fact that the premises were not openly displayed as a pharmacy (which is undoubtedly true), as requiring the conclusion that the business of a pharmacist was not being carried on there. It might not, in those circumstances, be regarded as an efficient way of carrying on the business of a pharmacy but efficiency is not the test.

54.The fact that the premises were not open to members of the public during normal business hours does not, in my view, add anything to my conclusion that, in reality, it was not intended that members of the public have access to the West End Dispensary. The way in which Mrs Holzberger carried on business as a pharmacist involved the performance of the dispensing part of that business at the West End Dispensary and the performance of that part that involved interaction with the public at the West End Markets Pharmacy.

The Exercise Of The Residual Discretion

55.Given that I am satisfied of the existence of the jurisdictional fact in s 98(3) of the National Health Act it becomes necessary to consider the exercise of the discretion. It is a discretion to cancel not a discretion not to cancel but its exercise is informed primarily by the fact that the scheme of the Act requires pharmacists to carry on business at approved premises. That requirement is part of a wider scheme where the executive government, in concert with the industry, has regulated the number and location of approved pharmacies.

56.One of the restrictions of that scheme that affects Mrs Holzberger is that she would not now be permitted to “relocate” her approval until the expiration of two years from the relocation from Highgate Hilltop Pharmacy to West End Dispensary.

57.Were I to decide that Mrs Holzberger’s approval ought not be cancelled it would mean that for a period of well over one year I would be condoning an operation that was at odds with the statutory scheme and the manner in which other pharmacies operate generally.

58.I accept that the consequence of a decision to cancel the approval will be the loss to Mrs Holzberger of good will of a significant value. The evidence of Mr Nelson, which was not disputed, was that an approval has a value between $350,000 and $375,000. But the loss that flows from the cancellation is a consequence of the decision made by Mrs Holzberger to seek to operate in a way that does not, in my view, comply with the National Health Act.

59.A proper exercise of the discretion requires cancellation of the approval.

60.I am, however, concerned that this be done in a way that causes the least disruption to those affected by the decision – particularly the existing patients, but also the staff employed by Mrs Holzberger.

61.Mr Hanks submitted that Mrs Holzberger, in her capacity as proprietor of the West End Dispensary, had no employees. That is too narrow a view. It seems to me to be an inevitable consequence of my decision that cancellation is required that there will be ramifications for the employees of the West End Markets Pharmacy. It is proper to have regard to the interests of those employees in considering the timing of the cancellation decision. 

62.The interests of existing patients and employees can be accommodated by reliance upon the power in s 43(5B) of the Administrative Appeals Tribunal Act to specify a date for the coming into operation of the cancellation.

63.Mr Logan submitted that a period of three months ought be allowed before the decision came into effect. Mr Hanks submitted that one month was more appropriate.

64.The evidence is that Mrs Holzberger attends, in a personal way, to the pharmaceutical needs of a number of aged patients who have requirements for many prescribed medicines. It will be disruptive to those persons to arrange for alternatives for the filling of their prescriptions. That disruption should, where possible, be minimized. I propose to allow a period of 3 months. I am sure that Mrs Holzberger will assist her patients to make alternative arrangements for the supply of prescriptions and that there is as smooth a transition as possible to a new pharmacist.

65.In the course of closing submissions Mr Logan submitted that if I reached the view that cancellation was required then I ought consider two further possibilities. The first was a decision affirming the decision under review but deferring the implementation for a period of 3 months or such further reasonable time that the Secretary may reasonably allow. The other was a decision setting aside the decision under review upon an undertaking by Mrs Holzberger to the Tribunal to commence carrying on business as a pharmacist from the approved premises within a specified time or to otherwise regularize the situation, perhaps by a sale of the approval.

66.I have had the benefit of supplementary submissions from the parties on the power of the Tribunal to make decisions in these terms.

67.As to the first I am not satisfied that I have the power to make a decision in these terms. Nor am I satisfied that it is desirable to do so. As to power, the matter is before the Tribunal. A decision that creates a further discretion in the Secretary is, as the Secretary submits, an impermissible melding of the powers of the Tribunal for the reasons explained by Moore J. in Civil Aviation Safety Authority v Allan.[6] But, in any event, a decision that leaves open the possibility of further disputation is undesirable even if it were to be within power. It is not difficult to envisage a situation where the Secretary and Mrs Holzberger were at odds about the exercise of the discretion that would be conferred by a decision in these terms.

[6] (2001) 114 FCR 14 at [16].

68.The other alternative has, at least, merit although, again, I am unpersuaded that I have the power to make a decision to set aside the cancellation decision upon the provision of an undertaking to regularize the situation. It has merit in the sense that, were it possible to devise a mechanism to avoid the financial loss to Mrs Holzberger that flows from a cancellation decision, my preference would be to do so. But, as it seems to me, once a decision is made the Tribunal is functus officio and would have no further powers.

69.In the result I will vary the decision under review by specifying that it is not to come into operation until midnight on 8 December 2006 but otherwise affirming it.    

I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .........................Signed...............................................
  Leisa Pendle, Associate

Dates of Hearing  14 August 2006, 15 August 2006
Date of Decision  8 September 2006
Counsel for the Applicant         Mr J A Logan SC
Solicitors for the Applicant        McCarthy Holzberger
Counsel for the Respondent     Mr P J Hanks QC and Mr J H Stephenson
Agent for the Respondent        Medicare Australia