Raw, I.L. v Pharmacy Restructuring Authority

IAN LAWRENCE RAW v. PHARMACY RESTRUCTURING AUTHORITY; MUSSAR KADERBHAI and
DILSHAD KADERBHAI
No. G368 of 1993
FED No. 422
Number of pages - 11
Administrative Law
(1993) 30 ALD 376 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J(1)

CATCHWORDS

Administrative Law - Whether the postponement of the making of a decision by the Pharmacy Restructuring Authority was unreasonable - whether the Authority took into account an irrelevant consideration

National Health Act 1953: s. 90

Administrative Decisions (Judicial Review) Act 1977

Judiciary Act s. 39B

HEARING

SYDNEY, 23 June 1993

#DATE 25:6:1993

Counsel for the Applicant : A Hughes

Solicitors for the Applicant : Ebsworth and Ebsworth

Counsel for the First Respondent : R M Henderson

Solicitors for First Respondent : Australian Government

Solicitor

Counsel for Second Respondents : G M Egan

Solicitors for Second Respondents : Turner Whelan

ORDER

The Court orders that:

1. The application be dismissed;

2. Ian Lawrence Raw pay the costs of the proceedings of Pharmacy Restructuring Authority and Mussar and Dilshad Kaderbhai, on the basis of one set of costs as between all respondents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

LOCKHART J The applicant, Ian Lawrence Raw, owns a pharmacy in Tweed Heads. He wishes to move his business to other premises nearby. He cannot do so without the permission of the respondent, Pharmacy Restructuring Authority ("the Authority"). Technically, the power of the Authority is to recommend to the Secretary of the Department of Health that a pharmacist should or should not be approved under s. 90 of the National Health Act 1953 ("the Act"), an approval which entitles the pharmacist to supply pharmaceutical benefits at or from certain premises. It is this right which entitles a pharmacist to recoup from the Australian Government some of the cost of customers' prescriptions. In practice this means that a chemist cannot open or move premises unless a favourable recommendation is given by the Authority. It is an interesting example of modern bureaucracy at work which substantially restricts the freedom of movement and choice of pharmacists and citizens.

1. Mr Raw is the proprietor of Ian Raw Chemist located at the corner of Brett Street and Recreation Street, Tweed Heads, New South Wales. Mr Raw wishes to move his pharmacy to a site located at the corner of Leisure Drive and Darlington Drive, Banora Point, New South Wales. He has under offer from the owner of the Banora Point Shopping Centre the lease of a shop in which to conduct his pharmacy business. The owner requires Mr Raw to make a decision as to whether he will in fact take up the lease within the next few days; but Mr Raw cannot commit himself unless and until he knows whether the Authority will make a favourable recommendation to the Secretary or not.

2. Mr Raw first applied to the Authority to relocate his premises on 2 September 1992, but…