Pharmacy NEO Pty Ltd and Secretary, Department of Health and Aged Care

Pharmacy NEO Pty Ltd sought review of a decision by the Secretary, Department of Health and Aged Care, to cancel its approval to supply pharmaceutical benefits. The dispute concerned whether the Secretary had the discretion to cancel the approval and, if so, whether that discretion should have been exercised. The matter was heard by Senior Member R Cameron of the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary issues. First, whether the discretion conferred upon the Secretary under section 98(3) of the relevant Act to cancel a pharmacist's approval under section 90 was enlivened. This involved assessing whether the applicant was not carrying on business as a pharmacist at the approved premises, or whether the premises were not accessible to the public at reasonable times. Second, if the discretion was enlivened, the Tribunal had to decide whether it should have been exercised.

The Tribunal found that the discretion to cancel the approval was enlivened. This was based on evidence that the applicant's lease for the premises expired on 30 June 2022, and the landlord elected to redevelop the site, preventing the applicant from continuing to trade. The premises were vacated and incorporated into another tenancy, and the applicant did not secure a new lease for those premises or elsewhere in the vicinity. The applicant's director conceded that the pharmacy ceased trading upon the lease's expiration, and both parties acknowledged that the preconditions for exercising the power under section 98(3) were met.

Despite the discretion being enlivened, the Tribunal concluded that the correct and preferable decision was to set aside the reviewable decision. The Tribunal considered the exceptional circumstances of the COVID-19 pandemic, which significantly impacted the applicant's trade and led to the need to vacate the premises. Affirming the cancellation would likely prevent the applicant from having a pharmacy in the Melbourne CBD again, whereas setting aside the decision provided an opportunity to rebuild. Consequently, the Tribunal decided that the approval was not cancelled.