NTMA Pharmaceuticals Pty Ltd v Beardmore

Case [2025] FCA 1036

FEDERAL COURT OF AUSTRALIA

NTMA Pharmaceuticals Pty Ltd v Beardmore [2025] FCA 1036

File number(s): NSD 414 of 2025
Judgment of: PERRY J
Date of judgment: 28 August 2025
Catchwords:

ADMINISTRATIVE LAW – supply of pharmaceutical benefits – application for judicial review of referrals for investigation of approved pharmacists pursuant to s 114 of the National Health Act 1953 (Cth) – where Pharmacy Compliance Evaluation Reports showed concerns that the applicants may have been utilising common patients to process PBS claims without supply and showing other serious compliance behaviours

ADMINISTRATIVE LAW – whether referrals void or invalid because they concerned the services or conduct of multiple approved pharmacists – whether Committee of Inquiry can inquire into past conduct of persons who have ceased to be approved pharmacists – whether referrals void for uncertainty due to failure to specify “other premises” with which specified persons are associated – whether Secretary has power to revoke or terminate referrals – application dismissed  
Legislation:

Acts Interpretation Act 1901 (Cth), s 33(3)

National Health Act 1953 (Cth), ss 4(1), 84, 86, 89, 90, 95, 99, 105AB(8), 113, 114, 119, 122, 123, 124(4), 125, 126, 134A, 135A(1)
Cases cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Cann’s Pty Ltd v Commonwealth (1946) 71 CLR 210

Choice Pharmacy Vincentia Pty Ltd v Australian Community Pharmacy Authority [2020] FCA 93

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76

Comcare v Lilley [2013] FCAFC 121; (2013) 216 FCR 214

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576

Director, Professional Services Review v Yoong [2025] FCAFC 95

Federal Commissioner of Taxation v Primary Health Care Ltd [2017] FCAFC 131; (2017) 252 FCR 496

George v Rockett (1990) 170 CLR 104

Government Insurance Office of New South Wales v RJ Green and Lloyd Pty Ltd (1966) 114 CLR 437

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Citizenship v Li [2013] HCA 18

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Belford & Bound (2011) 208 A Crim 256

R v Tillet; Ex Parte Newton (1969) 14 FLR 101

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Technical Products Pty Ltd v State Government Insurance Office Qld (1989) 167 CLR 45

Webb v The Queen (1994) 181 CLR 41
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 75
Date of last submission/s: 31 July 2025
Date of hearing: 25 July 2025
Counsel for the Applicants Mr J Horton KC and Mr J Pemberton
Solicitor for the Applicants Bennett & Philp Lawyers
Counsel for the Respondents Mr A Berger SC and Mr H Rogers
Solicitor for the Respondents  Australian Government Solicitor

ORDERS

NSD 414 of 2025
BETWEEN:

NTMA PHARMACEUTICALS PTY LTD

First Applicant

PL PHARMACEUTICALS PTY LTD

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Details
AGLC
NTMA Pharmaceuticals Pty Ltd v Beardmore [2025] FCA 1036
Case
[2025] FCA 1036
Decision Date

CaseChat Overview and Summary

NTMA Pharmaceuticals Pty Ltd and others sought judicial review of decisions made by the Secretary of the Department of Health concerning referrals for investigation of approved pharmacists. The applicants challenged the validity of the Secretary’s decisions to terminate or revoke certain referrals, arguing that they were procedurally flawed or otherwise invalid. The applicants argued that the Secretary failed to provide the required notice to the pharmacists, that the Committee lacked the power to investigate pharmacists who had ceased to hold approval, and that the Committee was acting with an ulterior purpose. The Secretary argued that the referrals were valid and that the applicants had not demonstrated any grounds for setting them aside.

The court held that the applicants’ arguments were misconceived. The court found that the Secretary had complied with the statutory requirements for giving notice to the pharmacists and that the Committee had the power to investigate the pharmacists, even if they had ceased to hold approval. The court also rejected the applicants’ argument that the Committee was acting with an ulterior purpose, finding that there was no evidence to support this claim. The court held that the power to revoke a referral was either an implicit incident of the power to make the referral or presumed by operation of the Acts Interpretation Act 1901 (Cth). The court held that the applicants had not demonstrated any grounds for setting aside the Termination Decisions and dismissed the application.

The court ordered that the further amended originating application be dismissed and that the applicants pay the costs of the sixth respondent as agreed or assessed. The orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The further amended originating application is dismissed.

2. The applicants are to pay the sixth respondent’s costs 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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

By their further amended originating application, the applicants seek a declaration that the Secretary’s decisions to terminate or revoke the 2023 United and PL Referrals (Termination Decisions) are invalid and therefore of no effect. The applicants raise the following issues with respect to the Termination Decisions. (1)The Committee failed to discharge its obligation to cause notice in writing to be given to the respective approved pharmacists pursuant to s 125(1) of the Act. That section provides that: “Where a matter referred to a Committee concerns the conduct of a PBS prescriber or an approved pharmacist … the Committee shall cause notice in writing of the matter so referred, and of the time and place at which the Committee intends to hold an inquiry into the matter, to be given to that PBS prescriber or an approved pharmacist at least 10 days before the date of the inquiry” (emphasis added). However, as the applicants first learned of the 2023 United and PL Referrals in July 2025, the Committee failed to comply with the obligation in s 125(1).(2)The Committee’s (current) position – that the Committee can continue to investigate PL even though it ceased to hold approval following the issuing of the February Referral – is inconsistent with the Committee’s (previous) position – that the Secretary ought to terminate the 2023 United and PL Referrals as those Referrals do not allow for these investigations “to continue in the event of a change of ownership of the pharmacy business”.(3)The Committee does not have the power to terminate an inquiry or revoke a referral. (4)The material suggests that the Committee is acting with “an ulterior purpose” with respect to DDS, namely “to permit action to be taken by the Minister against DDS for failings of the other purportedly connected” pharmacies. (5)The Committee and the Department are dealing with each other in a way that the Act does not authorise e.g., using a “pending inquiry (without any finalised report) to decide a possible application under s 90 of the Act”. The short answer to these submissions is that the relief sought with respect to these grounds is a bare declaration that the Termination Decisions were invalid and of no effect. As the Commonwealth submits, “[i]t is not suggested that any consequence would follow for the February and August referrals that are otherwise in issue in these proceedings, which (in the case of the February referral) overlap entirely with the subject matter of the earlier referrals”. I agree with the Commonwealth that, in circumstances where I have held that the grounds which attack the validity of the February and August Referrals must fail, this additional declaration has no utility and relief should be refused in the exercise of discretion: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582. In any event, the ground is misconceived. The power to revoke a referral is either: an implicit incident of the power to make the referral under s 114 of the Act, bearing in mind that the report itself has no independent legal consequences; or, presumed by operation of s 33(3) of the Acts Interpretation Act 1901 (Cth).

Ratio Decidendi

Legal Principle Established

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