Pharmacy Restructuring Authority v Martin - [1994] FCA 906

PHARMACY RESTRUCTURING AUTHORITY AND SECRETARY, DEPARTMENT OF COMMUNITY
SERVICES AND HEALTH v LORRAINE ELIZABETH MARTIN, NATALIE RIDGEWAY, KIM PHUONG
TRAN aka, KIM PHOUNG LAM, PHOUNG LAM AND LILY PHOUNG LAM
No. NG556 of 1994
FED No. 906/94
Number of pages - 10
Social Welfare
(1994) 53 FCR 589

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
WILCOX, FOSTER AND WHITLAM JJ

CATCHWORDS

Social Welfare - Pharmacy industry - Approval of pharmacists supplying pharmaceutical benefits - Application to Secretary for approval of supply at new premises - Reference of application to Pharmacy Restructuring Authority for recommendation - Guidelines specified in Determination made by Minister - Whether Authority is bound by guidelines - Reference in guidelines to calculation of distance "by normal access routes" - Meaning of this term - Whether or not Authority is bound to notify application to persons whose financial interests may be affected adversely by approval and to hear them before making a decision as to its recommendation.

HEARING

SYDNEY, 12 October 1994 #DATE 28:11:1994

Counsel for the Appellants: D M J Bennett QC with R C

Henderson

Solicitors for the Appellants: Australian Government

Solicitor

Counsel for the First
Respondents: S D Rares SC with A Hughes

Solicitors for the
First Respondents: Colinard and Co

ORDER

THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The orders made by the primary Judge on 5 August 1994 be set aside and in lieu thereof it be ordered that the Application be dismissed with costs.
3. The first respondents, Lorraine Elizabeth Martin and Natalie Ridgeway, pay the costs incurred by the appellants, Pharmacy Restructuring Authority and Secretary, Department of Community Services and Health, in connection with the appeal.
4. Leave be reserved to the said first respondents to apply to a member of this Court, sitting in Chambers, for a costs certificate pursuant to s.6(1) of the Federal Proceedings (Costs) Act 1981.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

WILCOX, FOSTER AND WHITLAM JJ This is an appeal from a decision of a Judge made in relation to an application under the Administrative Decisions (Judicial Review) Act 1977. The applicants for judicial review were Lorraine Elizabeth Martin and Natalie Ridgeway. Ms Martin and Ms Ridgeway, who are the first respondents to this appeal, carry on business as pharmacists at 16 John Street, Lidcombe. They succeeded in obtaining from the learned primary Judge an order setting aside a decision by the first appellant, Pharmacy Restructuring Authority, to recommend to the second appellant, the Secretary of the Department of Community Services and Health, approval of an application made under s.90 of the National Health Act 1953 by the second respondents, Kim Phuong Tran, Phoung Lam and Lily Phoung Lam. The second respondents participated in the hearing before the primary Judge but took no part in the hearing before us. The statutory scheme

Section 90(1) of the National Health Act empowers the Secretary to approve…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1994] FCA 906
Decision Date: 28 NOVEMBER 1994

CaseChat Overview and Summary

Pharmacy Restructuring Authority v Martin was a case involving the Pharmacy Restructuring Authority and Lorraine Elizabeth Martin, among others, concerning the approval of pharmacists supplying pharmaceutical benefits under the Social Welfare Act. The dispute arose when Martin applied to the Secretary for approval to supply pharmaceutical benefits at new premises, and the Secretary referred the application to the Pharmacy Restructuring Authority for a recommendation. The Authority issued a recommendation that the application be dismissed, and Martin sought judicial review of that decision.

The central legal issues the court had to address were whether the Authority was bound by the guidelines specified in a Determination made by the Minister when making its recommendation, and whether the Authority was required to notify certain parties of the application and hear them before making its recommendation. The term "normal access routes" used in the guidelines was also a point of contention, as the Authority had interpreted it differently from Martin.

The court found that the Authority was not bound by the guidelines and, therefore, was not obligated to follow the Minister's interpretation of "normal access routes." It was also determined that the Authority was not required to notify and hear parties whose financial interests might be adversely affected by the approval of the application. Consequently, the court allowed the appeal, set aside the primary Judge's orders, and dismissed Martin's application with costs. Lorraine Elizabeth Martin and Natalie Ridgeway were ordered to pay the costs incurred by the Pharmacy Restructuring Authority and the Secretary in connection with the appeal. The court also reserved leave for the respondents to apply for a costs certificate.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the primary Judge on 5 August 1994 be set aside and in lieu thereof it be ordered that the Application be dismissed with costs.

3. The first respondents, Lorraine Elizabeth Martin and Natalie Ridgeway, pay the costs incurred by the appellants, Pharmacy Restructuring Authority and Secretary, Department of Community Services and Health, in connection with the appeal.

4. Leave be reserved to the said first respondents to apply to a member of this Court, sitting in Chambers, for a costs certificate pursuant to s.6(1) of the Federal Proceedings (Costs) Act 1981.

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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