FEDERAL COURT OF AUSTRALIA
Kastrinakis v Australian Community Pharmacy Authority [2013] FCA 995
Citation: Kastrinakis v Australian Community Pharmacy Authority [2013] FCA 995 Parties: STEVEN KASTRINAKIS & ORS v AUSTRALIAN COMMUNITY PHARMACY AUTHORITY & ORS File number: VID 111 of 2013 Judge: DAVIES J Date of judgment: 2 October 2013 Catchwords: ADMINISTRATIVE LAW – judicial review – approval of pharmacists to supply pharmaceutical benefits from particular premises - National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth) – requirement that premises be 1.5 kilometres from the nearest approved premises – whether minimum distance requirement a jurisdictional fact – whether “no evidence” to justify decision to approve – whether the decision maker took into account an irrelevant consideration – whether the decision maker failed to take into account a relevant consideration – whether an improper exercise of power – application granted.
PRACTICE AND PROCEDURE – whether particular applicants have standing to bring claim – whether persons who are aggrieved – Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 followed.
Legislation: Administrative Decisions (Judicial Review) Act 1997 (Cth), s 5
National Health Act 1953 (Cth), ss 90, 99K
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth)Cases cited: Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462
Karalis v Australian Community Pharmacy (1998) 90 FCR 473
Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135
Cabal v Attorney-General of the Commonwealth (2001) 113 FCR 154
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222
Deloitte Touche Tohmatsu (a firm) v Deputy Commissioner of Taxation [1998] FCA 1439Date of hearing: 24 July 2013 Date of last submissions: 24 July 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 37 Counsel for the Applicants: S R Senathirajah Solicitor for the Applicants: Maddocks Lawyers Counsel for the First and Second Respondents: D O'Donovan Solicitor for the First and Second Respondents: Australian Government Solicitor Counsel for the Third and Fourth Respondents: M Hoyne Solicitor for the Third and Fourth Respondents: Best Hooper
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 111 of 2013
BETWEEN: STEVEN KASTRINAKIS & ORS
ApplicantsAND: AUSTRALIAN COMMUNITY PHARMACY AUTHORITY & ORS
RespondentsJUDGE:
DAVIES J
DATE OF ORDER:
2 OCTOBER 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application is granted.
2. The decision of the first respondent to recommend that the second respondent grant the third and fourth respondents approval under s 90(1) of the National Health Act 1953 (Cth) to supply pharmaceutical benefits at Shop 8, Eastwood Village Shopping Centre, Bairnsdale in the State of Victoria (“the premises”), is set aside as at the date of this…
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Details
- Case
- [2013] FCA 995
- Decision Date
CaseChat Overview and Summary
The case of Kastrinakis v Australian Community Pharmacy Authority involved the applicants challenging the decisions made by the Australian Community Pharmacy Authority and the Secretary to the Department of Health and Ageing. The applicants sought to establish a pharmacy but were denied approval due to the proximity of their premises to an existing approved pharmacy. The applicants argued that the decisions made by the respondents were flawed and sought judicial review of those decisions. The primary legal issues before the court were whether the respondents had the authority and jurisdiction to make the decisions, whether the decisions were made based on relevant and irrelevant considerations, and whether the respondents followed the procedures required by law. The court found that the respondents did have the authority and jurisdiction to make the decisions, as the minimum distance requirement was an evaluative fact rather than an objective jurisdictional fact. However, the court also found that the respondents had taken into account irrelevant considerations and failed to take into account relevant considerations, and had not followed the procedures required by law. As a result, the court found in favour of the applicants and quashed the decisions made by the respondents.
The court's reasoning was based on a number of factors. Firstly, the court found that the minimum distance requirement was an evaluative fact, rather than an objective jurisdictional fact. This meant that the respondents had the discretion to determine whether the requirement had been met, rather than simply determining whether a factual threshold had been reached. Secondly, the court found that the respondents had taken into account irrelevant considerations, such as the measurement taken from the wrong location on a Google Earth map, and had failed to take into account relevant considerations, such as the actual distance between the proposed premises and the nearest approved premises. Finally, the court found that the respondents had not followed the procedures required by law, as they had not considered the evidence provided by the applicants in accordance with the guidelines set out in the handbook published by the Department of Health and Ageing. As a result, the court quashed the decisions made by the respondents and remitted the matter back to them for reconsideration.
The court's reasoning was based on a number of factors. Firstly, the court found that the minimum distance requirement was an evaluative fact, rather than an objective jurisdictional fact. This meant that the respondents had the discretion to determine whether the requirement had been met, rather than simply determining whether a factual threshold had been reached. Secondly, the court found that the respondents had taken into account irrelevant considerations, such as the measurement taken from the wrong location on a Google Earth map, and had failed to take into account relevant considerations, such as the actual distance between the proposed premises and the nearest approved premises. Finally, the court found that the respondents had not followed the procedures required by law, as they had not considered the evidence provided by the applicants in accordance with the guidelines set out in the handbook published by the Department of Health and Ageing. As a result, the court quashed the decisions made by the respondents and remitted the matter back to them for reconsideration.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Accordingly, these grounds have been made out. GROUND 3 –THE “NO EVIDENCE” GROUND This ground requires the applicants to show that there was no evidence or other material to justify the making of the decisions and that:a)the Authority and Secretary were obliged by law to reach their decisions only if the minimum distance requirement was met and there was an absence of evidence or either material from which they could reasonably be satisfied that the requirement was met; orb)that they based their decision on the existence of the fact that the minimum distance requirement was met and that fact does not exist: AD(JR) Act, s 5(3); Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-1; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 at 234, 240 and 257. Ground three must also succeed and the reasons may be shortly stated. As the Google Earth map showed a measurement taken from a wrong location, the map was not evidence before the Authority and Secretary of the actual distance between the two premises. The first limb is satisfied because the minimum distance is a jurisdictional fact and there was no other material before them from which they could reasonably be satisfied that the requirement was met. The second limb is also satisfied because the actual distance is less than the prescribed minimum distance. GROUND 4 - AN IMPROPER EXERCISE OF POWER Section 5(2) of the AD(JR) Act provides that it is an improper exercise of power within the meaning of s 5(1) for a decision maker to take into account irrelevant considerations or fail to take into account relevant considerations in the exercise of a power. This ground is also made out. In relying upon the Google Earth map, the Secretary and the Authority took into account an irrelevant consideration because the map showed the measurement from the wrong location and failed to take into account the consideration that they were bound to take into account: viz, the actual distance between the proposed premises and the nearest approved premises. However, the applicants’ additional contention that the Authority and Secretary failed to take into account a “relevant consideration”, namely what the handbook published by the Department of Health and Ageing said about the kind of supporting evidence that should be provided to satisfy the minimum distance requirement, cannot be accepted. The purpose of the handbook is to provide information and guidance to pharmacists who wish to make an application for approval to supply pharmaceutical benefits. Amongst other things, the handbook states that if the distance separating the nearest approved pharmacy and the proposed premises is substantially greater than 1.5 kilometres “it may be sufficient” to provide a scaled map highlighting the two premises and the approximate straight line distance using the scale on the map as the basis. If the distance between both premises is “very near to the required distance”, the handbook advises that “applicants should provide a surveyor’s report of the measurement of the straight line distance” and then sets out what the surveyor’s report “should include”. These are not “policies” or guidelines to which the Authority and Secretary must have regard in exercising their powers. The argument misconceives Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-1 upon which the applicants relied in support of this contention.GROUND 5 - FAILURE TO FOLLOW PROCEDURES REQUIRED BY LAW
Decision
Reasons for decision
The Authority must recommend approval if all the applicable requirements are met: r 10; and must recommend that the applicant not be approved if an applicable requirement is not met: r 11.GROUNDS 1 AND 2 – NO AUTHORITY AND NO JURISDICTION TO MAKE THE DECISIONS These grounds can be considered together as they were argued on the same basis. It was contended that the minimum distance requirement prescribes an objective jurisdictional fact, which makes the exercise of the powers of the Authority and the Secretary to grant approval contingent on the actual fact of a minimum 1.5 kilometre distance between the proposed premises and the nearest approved pharmacy. It was further submitted that the applicants have shown by the unchallenged surveyor’s report that the actual distance is less than 1.5 kilometres. No cases have considered the minimum distance requirement but there is support for this contention having regard to the objective language of the requirement read in conjunction with rr 10 and 11 which are mandatory in terms. However, the third and fourth respondents argued that I should find that the minimum distance requirement is an evaluative fact, involving an exercise of judgment about whether the requirement is met. The third and fourth respondents relied on Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 per Branson J and Karalis v Australian Community Pharmacy (1998) 90 FCR 473 (“Karalis”) per Goldberg J in support of this submission. Those cases concerned a different requirement that was also couched in objective terms. The Rules (as they were at the time) required a maximum distance between the old and new premises “measured door to door by the shortest lawful access route” if an applicant had approval under s 90 of the National Health Act in respect of premises and was relocating. The Courts in both cases construed the requirement as involving an exercise of judgment and not simply the determination of an objective fact. In both cases, the Courts expressly followed the reasoning of the dissenting judgment of Black CJ in Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 465-7 (which the High Court upheld in effect in Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297). In issue in Australian Heritage Commission v Mount Isa Mines Ltd was whether the eligibility of a place for inclusion of the heritage register was a jurisdictional fact. Black CJ stated that:In considering the present question it is appropriate to examine first the nature of the task committed to the Commission under the Act. Reference to the definition of the national estate in s 4 of the Act reveals that the task of determining whether a place is part of the national estate may be a difficult and complicated one, involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially very wide range of matters. Questions of science, history and aesthetics may well need to be considered. Many branches of science, from biology to geology, may be involved. A wide range of historical and cultural issues might need to be considered if, to take just one example, it were necessary to determine whether a place had a special value for future generations by reason of a strong association with a particular cultural group for social, cultural or spiritual reasons: see s4(1A)(g). In such circumstances the very nature of the task of identifying places that are part of the national estate is suggestive of an intention that the body established by the Parliament with the function of identification is to have the power to make a conclusive determination of that matter. What the respondent argues is "a jurisdictional fact", namely the identity of a place as part of the national estate, is a conclusion of fact and one that must often rest on a range of potentially difficult and complicated facts, assessments and value judgments. If the conclusion that a place is part of the national estate were to be seen as a jurisdictional fact, one of the Commission's most important functions, and a key function in the overall scheme of the Act, would be performed only provisionally. Even where none of the familiar grounds of judicial review could be made out, and there was no suggestion that the Commission had acted otherwise than according to law, the identification of a place as part of the national estate could still be challenged on the facts. Despite the possible application of the principle that weight is given to the findings of fact of a specialist tribunal concerning a jurisdictional fact, there would be something approaching merits review of the Commission's decision since the matter for factual review would be, essentially, the performance of the whole function of identification. The inconvenience of such a result, an inconvenience that would be of a large dimension having regard to the subject matter of the "jurisdictional fact", is a powerful indication that it was not the intention of the Parliament that the finding should, in effect, be only provisional. Rather it suggests that it was the Parliament's intention that the power of the Commission to enter a place in the Register of the National Estate was to be contingent upon the Commission's own view of the matter. Inconvenience is a matter to be considered in ascertaining the intention of the Parliament in this area: Parisienne Basket Shoes v Whyte at 393 per Dixon J; cf Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 538-539 per Sackville J.
Ratio Decidendi
Legal Principle Established
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