Kongvic Pty Ltd and Secretary, Department of Health and Ageing
[2012] AATA 227
•18 April 2012
[2012] AATA 227
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0746
Re
Kongvic Pty Ltd
APPLICANT
And
Secretary, Department of Health and Ageing
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 18 April 2012 Date of written reasons 19 April 2012 Place Brisbane The application for an extension of time within which to seek a review of the respondent's decision of 16 January 2012 is refused.
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Deputy President PE Hack SC
Catchwords
PRACTICE AND PROCEDURE – Extension of time to lodge an application for review – Pharmaceutical Benefits Scheme – application was not accompanied by the prescribed fee – application lacks utility – application refused.
Legislation
National Health act 1953 (Cth) ss 90(1), 90(3A), 90(3B), 99K
National Health (Australian Community Pharmacy Authority Rules) Determination 2006REASONS FOR DECISION
Deputy President PE Hack SC
19 April 2012
On 18 April 2012 I refused the application of Kongvic Pty Ltd for an extension of time within which Kongvic might seek a review of a decision of the respondent, the Secretary, Department of Health and Ageing. These are my reasons for taking that course.
At some stage during 2011 Kongvic had sought approval, pursuant to s 90(1) of the National Health act 1953 (Cth), to supply pharmaceutical benefits at premises at 74 Simpson Street, Beerwah, Queensland. That application was referred to the Australian Community Pharmacy Authority, as required by s 90(3A) of the Act. The Authority was obliged by s 99K of the Act to consider the application and make a recommendation to the Secretary whether or not the application should be approved under s 90 in respect of the premises. In making that recommendation the Authority was bound to comply with rules determined by the Minister, the National Health (Australian Community Pharmacy Authority Rules) Determination 2006.
On 25 November 2011, having considered the application, the Authority was not satisfied that it met all of the requirements of Rule 107 of the Determination. Accordingly it recommended to the Secretary that the application not be approved. Kongvic was notified of that decision, and of its right to seek a review of the decision in this Tribunal, by letter dated 6 December 2011. The letter advised Kongvic that the Secretary would make a decision under s 90 of the Act after the expiry of the appeal period in relation to the decision.
Kongvic did not seek a review within the specified period of 28 days. On 16 January 2012 the Secretary, by a delegate, made the decision which is the subject matter of these proceedings, a decision under s 90(3B) “to reject Kongvic Pty Ltd’s application to supply pharmaceutical benefits on the … premises”. Notice of that decision, and of the right to seek a review of the decision within 28 days of receipt of the letter, was given to Kongvic. These proceedings were commenced on 23 February 2012 when an email, treated as an application, was received from Mr Kennedy, the agent for Kongvic, seeking a review of the 16 January 2012 decision. The application was not accompanied by the prescribed fee which was not paid until 14 March 2012.
Kongvic now seeks an extension of time within which to seek the review of the 16 January 2012 decision.
Mr Dillon, the solicitor for the respondent, opposed the application. Additionally he raised concerns about the authority of Mr Kennedy to act on behalf of Kongvic. If it were the only point, the second issue could be readily disposed of by the lodging of a document authorising Mr Kennedy to act.
The first issue has more substance. I considered that the application ought be refused because the underlying application lacked utility. That is so because, unless the Authority recommends the grant of approval, the Secretary is bound to refuse to grant an approval. That is the effect of s 90(3B) of the Act which is in these terms:
An approval may be granted under this section in respect of an application to which subsection (3A) applies only if the Authority has recommended the grant of an approval, but the Secretary may refuse to grant an approval even if the grant has been recommended by the Authority.
The terms of the subsection make otiose an examination of the underlying merits of the application for approval and the ability of Kongvic to demonstrate compliance with the relevant rule in the Determination. The Tribunal, which has only the powers and functions of the original decision-maker, cannot approve the premises in the absence of a favourable recommendation from the Authority regardless of the underlying merit. The occasion to contest the underlying merit was on an application to review the Authority’s recommendation to not approve.
Kongvic had the opportunity to agitate the correctness of the Authority’s recommendation but did not do so within the ordinary time. It is a matter for Kongvic whether it might now seek an extension of time to seek a review of the antecedent decision of the Authority of 25 November 2011. It would be well advised to seek competent legal advice about the possibility of doing so.
I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC.
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Associate
Dated 19 April 2012
Date(s) of hearing 18 April 2012 Advocate for the Applicant Mr G Kennedy Counsel for the Respondent Mr A Dillon Solicitors for the Respondent Australian Government Solicitor
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