Inas Karem Holdings Pty Ltd and Secretary, Department of Health and Aged Care
[2022] AATA 2883
•7 September 2022
Inas Karem Holdings Pty Ltd and Secretary, Department of Health and Aged Care [2022] AATA 2883 (7 September 2022)
Division:GENERAL DIVISION
File Number(s): 2022/2583
Re:Inas Karem Holdings Pty Ltd
APPLICANT
AndSecretary, Department of Health and Aged Care
RESPONDENT
Decision
Tribunal:Senior Member A Poljak
Date:7 September 2022
Place:Sydney
An extension of time is granted to 30 March 2022 pursuant to subsection 29(7) of the AAT Act.
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Senior Member A Poljak
Catchwords
PRACTICE AND PROCEDURE – extension of time application – where the applicant contends that their application was not made out of time – statutory interpretation – service of documents – service by post – application found to be out of time – extension of time granted.
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
National Health Act 1953 (Cth)Cases
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Intelogent Pty Ltd v Onthego Group Pty Ltd [2021] FCA 257
Polstar Pty Ltd v Agnew [2007] NSWSC 114; (2007) 208 FLR 226REASONS FOR DECISION
Senior Member A Poljak
7 September 2022
Inas Karem Holdings Pty Ltd, the applicant, was approved under section 90 of the National Health Act 1953 (Cth) (the Act) to supply pharmaceutical benefits at the Priceline Pharmacy Railway Square, Shops 18-19, Henry Deane Plaza, Lee Street, Sydney, New South Wales 2000 (approved premises). This approval was granted on 3 November 2011
On 10 January 2022, a delegate of the respondent issued a notice of intention to cancel (NOIC) the approval held by the applicant. The applicant was invited to show cause as to why the respondent should not decide to cancel the approval under section 90 of the Act. This NOIC was addressed to the approved premises and sent by way of registered post. The applicant did not respond to the NOIC.
The applicant has sought review in this Tribunal of a decision by the respondent made on 11 February 2022, to cancel the approval of the applicant to supply pharmaceutical benefits at the approved premises under subsection 98(3) of the Act (substantive proceedings). The basis of the decision was that the applicant was not carrying on business as pharmacist at the premises in respect of which the pharmacist was approved (the decision).
The decision was addressed to the approved premises and sent to the applicant by way of registered post. The Australia Post tracking information reflects that an attempted delivery was made at the address on 16 February 2022, but as Australia Post was unable to gain access, it was delivered to the GPO Box Centre Sydney on 18 February 2022.
On 24 March 2022, at the request of the applicant, the respondent emailed a copy of the decision to the applicant. On 30 March 2022, an application for review was lodged with the Tribunal.
The respondent contends that the applicant received the decision on 18 February 2022, being the date, the notice of decision was delivered. As such, the applicant was required to apply to the Tribunal seeking review of the decision by 18 March 2022, being 28 days after the applicant was given a document setting out the terms of the decision pursuant to paragraph 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
The applicant contends that it did not receive the decision until 24 March 2022 and as such, no extension of time is needed as the application for review was filed within time. It is also contended that the decision was not properly addressed and that the Australia Post records reveal that the decision was not delivered to its designated address but was rather directed to the GPO Box Centre and marked as “awaiting collection”.
The issues for determination in these interlocutory proceedings is whether the applicant’s application for review of the decision was lodged within the time prescribed and if not, whether an extension of time should be granted pursuant to subsection 29(7) of the AAT Act.
The respondent neither consents to nor opposes time being extended but submits that the proceedings ought to be regularised before the matter proceeds through the case conference process.
Was the application for review made within time?
Subsection 28A(1)(b) of the Acts Interpretation Act 1901 (Cth) (AIA) provides that for the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served on a body corporate—"by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate”. Subsection 29(1) of the AIA provides that:
Where an Act authorises or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
The decision was by registered post and properly addressed to the approved premises, being the address for the purposes of section 90 of the Act. Despite the applicant’s decision to temporarily cease trading at the approved premises, it is still the applicant’s principal office. It is capable of being open to the public and at which it is possible to display the company’s name; see Intelogent Pty Ltd v Onthego Group Pty Ltd [2021] FCA 257 at [39] where the observation made by Barrett J in Polstar Pty Ltd v Agnew [2007] NSWSC 114; (2007) 208 FLR 226 at [17]-[18] was accepted.
While the respondent found that the applicant was not carrying on business as a pharmacist at the premises in respect of which the pharmacist was approved, it does not necessarily follow that the applicant had left the premises. The approved premises is the address that was provided to the respondent in various correspondence, as recently as the Notification of Change of Pharmacy Registered Business (Trading) Name form, dated 1 October 2021, as the pharmacy registered business address. It is also the ‘Principal Place of Business’ address listed on the Australian Securities and Investments Commission (ASIC) extract submitted to the then Department of Health, dated 21 July 2021. There was no subsequent correspondence notifying the respondent that the applicant had left that approved premises.
I note that the ASIC extract lists ‘Haymarket’ instead of ‘Sydney’ but Australia Post tracking details identified that Australia Post had attempted to deliver the decision to the location in ‘Haymarket’, despite the delivery address stating ‘Sydney’, which indicates that regardless of whether ‘Haymarket’ or ‘Sydney’ was used, the decision was directed to the same location.
While I acknowledge the applicant’s claim that it did not physically receive the decision of the respondent, this is insufficient to displace the deemed result that the decision was given to the applicant upon delivery. As the respondent stated, of which I agree, it is reasonable to expect that the applicant assumed responsibility for checking its mail and collecting anything from the Post Office that was unable to be delivered. Non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post; see Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 96-97.
Decision
The decision dated 11 February 2022 was given to the applicant on 18 February 2022 and accordingly, the application was lodged 12 days out of time.
An extension of time is granted to 30 March 2022 pursuant to subsection 29(7) of the AAT Act.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 7 September 2022
Date(s) of hearing: 19 August 2022 Date final submissions received: 23 August 2022 Solicitor for the Applicant: Mr M Flaherty, Michael Flaherty Solicitors Solicitor for the Respondent: Ms M Donald, Sparke Helmore Lawyers
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