PHARMACY RESTRUCTURING AUTHORITY and SECRETARY, DEPARTMENT OF HEALTH, HOUSING
AND COMMUNITY SERVICES v. KEVIN NORMAN CHATFIELD
No. WAG213 of 1992
FED No. 495
Number of pages - 13
Administrative Law
(1993) 116 ALR 76
(1993) 18 AAR 34
(1993) 30 ALD 349 (extract), (1993) 43 FCR 418
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), French(2) and Lee(1) JJ
CATCHWORDS
Administrative Law - pharmaceutical benefits - retail pharmacy industry restructuring - legislative scheme - Ministerial guidelines - objectives - construction and application - new pharmacy premises - application for approval - role of Pharmacy Restructuring Authority - role of Secretary - requirement for definite unmet public need - need - whether existing or prospective - public - whether limited community - whether need related to pharmacy or pharmaceutical benefits - characterisation of public need.
Word and Phrases - "need", "public", "definite unmet public need".
National Health Act 1953 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) s.37
Community Services and Health Legislation Amendment Act 1990 (Cth)
Health and Community Services Legislation Amendment Act 1991 (Cth)
Re Shortis and Secretary, Department of Community Services and Health (1991) 23 ALD 396
Re Garozzo and Pharmacy Restructuring Authority (1992) 16 AAR 251
Latitude Fisheries Pty Ltd v. Minister for Primary Industry and Energy (unreported, 31 March 1993)
HEARING
PERTH, 22 March 1993
#DATE 23:7:1993
Counsel for the Applicants: Mr S. Bhojanai
Solicitors for the Applicants: Australian Government Solicitor
Counsel for the Respondent: Mr R. Hyman
Solicitors for the Respondent: Kennedy and Hyman
ORDER
THE COURT ORDERS THAT:
1. The decision made by the Tribunal be set aside and the following decision substituted:
(a) The recommendation of the Authority be set aside and in substitution therefor it be recommended by the Authority that the respondent be approved for the purpose of supplying pharmaceutical benefits from the proposed premises at Warnbro.
(b) The decision of the Secretary of the Department of Community Services not to approve the respondent be set aside and the Secretary be directed to reconsider the application in light of the substituted recommendation of the Authority and to approve the respondent subject to the Secretary's satisfaction as to incidental matters such as compliance with s.90(4) of the National Health Act 1953.
2. The appeal be otherwise dismissed.
3. The applicants to pay the respondent's costs of the appeal.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
DAVIES and LEE JJ This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") constituted by the President, Justice D.F. O'Connor, Deputy President P.W. Johnston and Dr J.G. Billings. Under s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) the appeal is limited to a question of law. The Tribunal described the decision under review thus:-
"1. The…
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- AGLC
- Pharmacy Restructuring Authority & Anor v. Chatfield, K.N. [1993] FCA 495 ((1993) 116 ALR 76; (1993) 18 AAR 34; (1993) 30 ALD 349; (1993) 43 FCR 418)
- Case
- [1993] FCA 495
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Pharmacy Restructuring Authority correctly assessed the public need for the proposed pharmacy at Warnbro, and whether this need was sufficiently definite and unmet. The court also needed to determine the scope of the public need, whether it was to be assessed based on existing or prospective requirements, and if the public need related exclusively to the pharmacy or could also encompass broader pharmaceutical benefits.
The court found that the Pharmacy Restructuring Authority had erred in its assessment of the public need. The court held that the need must be definite and unmet, and that the public need could relate to both existing and prospective requirements. The court also clarified that the public need could extend beyond the specific pharmacy to encompass broader pharmaceutical benefits. Consequently, the court set aside the Tribunal's decision and substituted it with a recommendation that the respondent be approved for the proposed premises at Warnbro. The Secretary of the Department of Community Services was directed to reconsider the application in light of this recommendation and approve the respondent subject to compliance with relevant statutory requirements.
In its orders, the court set aside the decision of the Tribunal and directed the Pharmacy Restructuring Authority to recommend approval for the proposed pharmacy. The Secretary was instructed to reconsider and approve the application, subject to compliance with specified conditions. Additionally, the applicants were ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The decision made by the Tribunal be set aside and the following decision substituted:
(a) The recommendation of the Authority be set aside and in substitution therefor it be recommended by the Authority that the respondent be approved for the purpose of supplying pharmaceutical benefits from the proposed premises at Warnbro.
(b) The decision of the Secretary of the Department of Community Services not to approve the respondent be set aside and the Secretary be directed to reconsider the application in light of the substituted recommendation of the Authority and to approve the respondent subject to the Secretary's satisfaction as to incidental matters such as compliance with s.90(4) of the National Health Act 1953.
2. The appeal be otherwise dismissed.
3. The applicants to pay the respondent's costs of the appeal.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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