Murray v Australian Community Pharmacy Authority

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FEDERAL COURT OF AUSTRALIA

Murray v Australian Community Pharmacy Authority [2017] FCA 705

File number: NSD 2023 of 2016
Judge: GRIFFITHS J
Date of judgment: 22 June 2017
Catchwords:

ADMINISTRATIVE LAW – judicial review of the Australian Community Pharmacy Authority’s recommendation to the Secretary of the Department of Health and Ageing that approval be granted under s 90 of the National Health Act 1953 (Cth) (Act) to supply pharmaceutical benefits at premises – judicial review of delegate’s decision to grant the approval under s 90 of the Act – whether application was in respect of whole or part of premises

Held – application dismissed with costs

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth) s 39B

Legislative Instruments Act 2003 (Cth) s 13

National Health Act 1953 (Cth) ss 4, 90, 99K, 99L

National Health (Pharmaceutical Benefits) Regulations 1960 (Cth) reg 8

National Health (Australian Community Pharmacy Authority Rules) Determination 2011 ss 5, 6, 8, 10, 11, Sch 1, Sch 2
Cases cited: Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273; 230 FCR 243
Date of hearing: 19 June 2017
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 46
Counsel for the Applicants: Mr H Woods
Solicitor for the Applicants: Michael Flaherty Solicitor
Counsel for the First Respondent: Mr BD Kaplan
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Third Respondent: Ms RM Henderson
Solicitor for the Third Respondent: Meridian Lawyers

ORDERS

NSD 2023 of 2016
BETWEEN:

LUKE MURRAY

First Applicant

ESPIE WATT

Second Applicant

PETER FEROS

Third Applicant
AND:

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

First Respondent

SECRETARY, DEPARTMENT OF HEALTH AND AGEING

Second Respondent

ST MOSES BLACK PTY LTD ACN 604 056 877

Third Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

22 JUNE 2017

THE COURT ORDERS THAT:

1.The further amended originating application for judicial review is dismissed. 

2.The applicants must pay the costs of the first and third respondents, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

  1. This proceeding involves a judicial review challenge to the validity of two matters.  The first is a decision by the Australian Community Pharmacy Authority (Authority) to recommend to the Secretary of the Department of Health and Ageing (the Secretary) that approval be given under s 90 of the National Health Act 1953 (Cth) (the Act) to an application by St Moses Black Pty Ltd (St Moses) to supply pharmaceutical benefits at premises at Unit 110, 227 Flemington Road, Franklin in the Australian Capital Territory.  The second matter concerns a decision by the Secretary’s delegate made on 21 November 2016 to grant the approval. 

  2. The judicial review applicants own a pharmacy located at 2/141 Flemington Road, Mitchell, another suburb in Canberra.  They have an existing approval to supply pharmaceutical benefits from that location,…

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Details
Case
[2017] FCA 705
Decision Date

CaseChat Overview and Summary

Murray and others have brought a judicial review application against the Australian Community Pharmacy Authority, seeking to overturn its recommendation to the Secretary of the Department of Health and Ageing to approve St Moses Black Pty Ltd’s application to supply pharmaceutical benefits at premises located at Unit 110, 227 Flemington Road, Franklin, ACT. The applicants argue that the Authority did not act lawfully, reasonably, or fairly in making its recommendation, and that the delegate’s approval is therefore invalid. The applicants contend that the Authority’s deferral of its decision on the application and the failure to consider relevant information rendered the decision irrational and unlawful.

The central legal issues before the court were whether the Authority’s deferral of its decision on the application and its failure to consider relevant information rendered its recommendation unlawful, and whether the delegate’s approval of the application was therefore invalid. The court had to determine whether the Authority’s actions were in accordance with the rules governing its decision-making process and whether the decision to recommend approval was rational and based on the correct legal principles.

The court found that the Authority’s deferral of its decision on the application was not unlawful, as the Authority had legitimately sought further information from St Moses to ensure that all relevant considerations were taken into account. The court held that the Authority’s decision to recommend approval was rational and based on the correct legal principles, and that the delegate’s approval of the application was therefore valid. The court dismissed the application for judicial review, finding that the applicants had not demonstrated any error of law or irrationality in the Authority’s decision-making process.

The court ordered that the applicants pay the costs of the respondents, as agreed or assessed. The applicants’ further amended originating application for judicial review is dismissed, and the delegate’s approval of St Moses Black Pty Ltd’s application to supply pharmaceutical benefits at the specified premises is upheld.

Orders

Orders of the court

1. The further amended originating application for judicial review is dismissed.

2. The applicants must pay the costs of the first and third respondents, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons which follow, the further amended application for judicial review will be dismissed, with costs. Summary of relevant background facts The following facts are uncontroversial. On 29 June 2016, St Moses lodged an application with the Secretary for approval to supply pharmaceutical benefits at Unit 110, 227 Flemington Road, Franklin, ACT. It will be necessary to say something more about the contents of that application shortly. The application was given an application registration number NA 2520. The Secretary referred the application to the Authority pursuant to s 90(3A) of the Act. Although there was no copy of any letter of referral in evidence, a document entitled “Referral to ACPA – check list” dated 7 July 2016 was in evidence. It contains an express reference to the application number NA 2520. There is no dispute that the Authority had before it, from at least 7 July 2016, a copy of the application lodged on 29 June 2016, together with the supporting documentation. So much is clear from the Authority’s statement of reasons dated 31 October 2016 (see further below). By letter dated 20 July 2016, the judicial review applicants were informed by the Authority of St Moses’ application. They were informed that an “application for approval to supply pharmaceutical benefits at Unit 110, 227 Flemington Road, Franklin, ACT, 2013 has been referred to” the Authority for consideration under item 130 of the relevant rules. The applicants’ solicitor sent the Authority a letter dated 19 August 2016 opposing the application. The application was considered by the Authority at its meeting on 26 August 2016. A decision was made then to defer making any recommendation in respect of the application. There was then an exchange of correspondence between the Authority and St Moses’ solicitor prior to the Authority again considering the application at a meeting on 30 September 2016. The Authority determined at that time to recommend that the application be approved. This recommendation was sent to the Secretary on 4 October 2016. A copy of the recommendation was belatedly put into evidence. The recommendation described the application in the following terms:Application DetailsApplication: NA2520Applicant: St Moses Black Pty LtdAddress of proposed premises: Part of Unit 110, 227 Flemington Road, Franklin, ACT, 2913. For reasons which will shortly emerge, it is significant to note that the letter of recommendation referred to the application being in respect of part of Unit 110. It is also significant to note that the letter of recommendation expressly stated that the “documentation submitted with the application is now returned” (i.e. returned to the Secretary). It may be deduced that the Secretary had supplied the Authority with a copy of St Moses’ formal application and supporting documentation, given the reference at the end of the recommendation letter to the documentation submitted with the application being returned to the Secretary.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As noted above, the delegate’s formal approval is not expressed in terms of “part” of Unit 110. Rather, it refers to “at the premises situated at Unit 110 etc”. But nothing of significance turns on that. The formal approval is issued to St Moses and plainly relates to its application having regard to the relevant legislative scheme. St Moses would fully understand that the approval relates only to part of the premises as described in its application. Different considerations might arise if there was a legal obligation to publish the formal approval more widely. It is unnecessary to consider that hypothetical. Conclusion For these reasons, the further amended originating application for judicial review must be dismissed. No persuasive reason was given as to why costs should not follow the event. Accordingly, I will order the judicial review applicants to pay the costs of both the first and third respondents, as agreed or assessed.

Ratio Decidendi

Legal Principle Established

Schedule 2 of the Rules also specified general requirements which were relevant to St Moses’ application. In summary, items 211 and 212 required the Authority to be satisfied of various matters, including that the proposed premises were not approved premises; that the applicant had a legal right to occupy the proposed premises and that the proposed premises could be used for the operation of a pharmacy under applicable local government and State or Territory laws relating to land development. The Authority also needed to be satisfied that within six months of making a recommendation the applicant would be able to begin operating a pharmacy at the proposed premises, and that the proposed premises were not directly accessible by the public from within a supermarket. Consideration and determination It is convenient to deal seriatim with the grounds of review set out in the further amended originating application for judicial review, noting that most are directed to the actions of the Authority, however, a challenge is also brought to the validity of the delegate’s approval. The first ground claims that the Authority acted contrary to the Rules by effectively deferring consideration of St Moses’ application on 26 August 2016, when it was first considered by the Authority, rather than determining at that time that the Authority recommend that the application not be approved. The judicial review applicants relied upon a record produced by the Authority of its meeting held on 26 August 2016. The record appears to have been prepared by someone in the Authority’s secretariat. Handwritten annotations on the record which appear alongside the entry “Premises: Unit 110, 227 Flemington Road, Franklin, Act, 2913” record that the premises are “part of as per hatched plan”. There are other handwritten annotations alongside the relevant items, particularly items 211, 212 and 130. Under a heading “Reasons for deferral (if applicable)”, there are various handwritten annotations which indicate that the view was apparently taken that further information was required in relation to various relevant items. They include, for example, the reference alongside item 211(c) to “clarification that Council breach has been rectified & that pharmacy and Dr able to operate”. The minutes of the Authority’s meeting held on 26 August 2016 (the Minutes) contain information relating to St Moses’ application. The Minutes record the Authority having considered “information provided by an interested third party”. That information is described in the Minutes as including advice which indicated that a controlled activity was being conducted at the proposed premises and that directions had been issued by the Council to the lessee of the proposed premises requiring it to take steps to rectify the breach. The Minutes then record that the Authority was unable to determine whether this breach impacted on the ability of a pharmacy to operate at the proposed premises. The Minutes state that the Authority was unable to determine, based on information provided by the third party, whether the Council’s directions required that the activity being conducted at the proposed premises, namely the operation of the medical practice, should cease until the breach was rectified. Finally, the Minutes record that the Authority requested St Moses to provide various relevant information relating to its application.