Philip Colasante Pharmacies Pty Ltd and Australian Community Pharmacy Authority

The Administrative Appeals Tribunal considered an application by Philip Colasante Pharmacies Pty Ltd and Pharmec Pty Ltd (the Applicants) to review a decision by the Australian Community Pharmacy Authority (the Authority). The dispute arose from the Applicants' plan to relocate a pharmaceutical benefits approval. Their strategy involved temporarily relocating an existing approval to interim premises for two years, obtaining a new approval at the original location, and then relocating the approval from the interim premises to a new, larger site after the two-year period. This plan was devised based on the understanding that the relevant rules permitted such relocations every two years.

The primary legal issues before the Tribunal were whether the Applicants could benefit from the previous rules governing relocation periods, given that the rules were amended before the expiration of the two-year period, and whether exceptional circumstances existed that would justify an exception to the amended rules. The Applicants also contended that the amended rules, which increased the required period between relocations from two to five years, should not apply retrospectively to their pre-existing plan. The Tribunal was asked to determine if the inability to supply pharmaceutical benefits at the interim premises, due to its scale and location, constituted exceptional circumstances.

Deputy President Constance P reasoned that the Applicants' assumption that the law would not change was not a valid basis for their plan. The Tribunal found that the amendment to the Pharmacy Location Rules in October 2018, which increased the relocation period to five years, was expressly designed to prevent the establishment of temporary pharmacies intended for subsequent relocation. The Tribunal held that the amended rules did not offend the common law presumption against retrospectivity as they had future effect only on future applications and did not alter past events. Furthermore, the Tribunal determined that the Applicants' inability to supply pharmaceutical benefits at the interim premises was a matter of commercial viability, not an inability to supply, and therefore did not constitute exceptional circumstances within the meaning of the rules.

The Tribunal affirmed the Authority's decision of 21 June 2019, which recommended that the Applicants' application for approval to supply pharmaceutical benefits at the proposed new premises not be approved.