Kong v Minister for Health

The applicants, Kong and two other pharmacists, challenged the Minister for Health’s decision not to approve their applications to supply pharmaceutical benefits under s 90A of the National Health Act 1953 (Cth). They sought judicial review of the Minister’s exercise of discretion to personally approve a pharmacy to supply pharmaceutical benefits. The applicants argued that they had been denied procedural fairness and that the Minister misunderstood the meaning of ‘public interest’. The Minister argued that she was not obliged to give the applicants an opportunity to be heard and that they lacked standing.

The court examined whether the Minister was obliged to give the applicants an opportunity to be heard and whether they had standing to bring the proceedings. The court found that the Minister was not obliged to consider the applicants' requests for approval as there was no legal obligation for her to do so. The court also found that the applicants did not have standing because they had not suffered or were at risk of suffering a legal detriment as a result of the Minister’s decision. The court further found that the Minister did not misunderstand the meaning of ‘public interest’ as she had considered the public interest in approving the applicants' applications.

The application for judicial review was dismissed with costs. The court held that the Minister was not obliged to consider the applicants' requests for approval as there was no legal obligation for her to do so. The court further held that the applicants did not have standing because they had not suffered or were at risk of suffering a legal detriment as a result of the Minister’s decision. The court found that the Minister had not misunderstood the meaning of ‘public interest’ as she had considered the public interest in approving the applicants' applications.