PKCW PTY LTD and Australian Community Pharmacy Authority

PKCW Pty Ltd (the applicant) sought judicial review of a decision by the Australian Community Pharmacy Authority (the Authority) concerning its application for approval to supply pharmaceutical benefits at new premises. The dispute arose because the applicant's lease at its existing premises was terminated due to the site's purchase and redevelopment, preventing the supply of pharmaceutical benefits at those premises. The matter was heard by A Poljak SM.

The primary legal issue before the court was whether the circumstances surrounding the applicant's inability to supply pharmaceutical benefits at its existing premises constituted "exceptional circumstances" for the purposes of Item 312(b)(v) of the National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Cth). This provision allows for relocation if pharmaceutical benefits are unable to be supplied at the existing premises due to a disaster or exceptional circumstances, and will not be able to be supplied there in the future, provided the application is not of a specific kind mentioned elsewhere.

The court reasoned that the term "exceptional circumstances" should be given its ordinary meaning, and the focus must be on whether the *inability to supply* pharmaceutical benefits is the result of such circumstances. Drawing on the Explanatory Statement to the Rules and previous case law, the court noted the intention of Item 312 is to maintain the stability of the pharmacy network while allowing some flexibility. The court found that the unexpected purchase and redevelopment of the site, leading to the early termination of the lease, were rare events not routinely encountered by businesses of this nature. Therefore, these circumstances were deemed to establish exceptional circumstances.

The court set aside the Authority's decision and substituted it with a decision to recommend the applicant's application for approval at the new premises.