Rogers v Secretary, Department of Health and Ageing
[2004] FCA 552
•13 MAY 2004
FEDERAL COURT OF AUSTRALIA
Rogers v Secretary, Department of Health and Ageing [2004] FCA 552
ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – cancellation of approval to supply pharmaceutical benefits – approved pharmacist not carrying on business at premises in respect of which pharmacist approved – trading in approvals - whether Tribunal failed to recognise the policy objectives of maintaining a viable and well distributed community pharmacy network – whether Tribunal failed to take a relevant consideration into account
National Health Act 1953 (Cth) subs 98(3)
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Administrative Decisions (Judicial Review) Act 1977 (Cth) subs 5(2)(b)Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 cited
Shaffer v Secretary, Department of Health and Aged Care (2002) 124 FCR 234 referred to
Sean Investments Pty Ltd v MacKellar (1982) 38 ALR 363 considered
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 consideredThird Community Pharmacy Agreement, cl 4.1(a) and 4.1(f)
ALLAN ROGERS and GEOFFREY PRIOR v SECRETARY, DEPARTMENT OF HEALTH AND AGEING
No Q 8 of 2004
SPENDER J
BRISBANE
13 MAY 2004
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 8 OF 2004
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
ALLAN ROGERS and GEOFFREY PRIOR
APPLICANTSAND:
SECRETARY, DEPARTMENT OF HEALTH AND AGEING
RESPONDENTJUDGE:
SPENDER J
DATE OF ORDER:
13 MAY 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicants pay the respondent’s costs, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 8 OF 2004
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
ALLAN ROGERS and GEOFFREY PRIOR
APPLICANTSAND:
SECRETARY, DEPARTMENT OF HEALTH AND AGEING
RESPONDENT
JUDGE:
SPENDER J
DATE:
13 MAY 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) constituted by Deputy President D. Muller given on 19 December 2003 at Brisbane, whereby the Tribunal decided to affirm the decision of a delegate of the Secretary, Department of Health and Ageing to cancel approval number 30210B granted to the applicants, Allan Rogers and Geoffrey Prior (“the applicants”), to supply pharmaceutical benefits at approved premises pursuant to subs 98(3) of the National Health Act 1953 (Cth) (“the Act”).
The Tribunal was called upon to review the exercise of a discretion vested in the respondent under subs 98(3) of the Act. The effect of the function of the Tribunal under s 43 of Administrative Appeals Tribunal Act 1975 (Cth) was to exercise the discretion given by that section afresh. The Tribunal was to make the correct or preferable decision on the materials before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J.
Subsection 98(3) of the Act is in these terms:
‘Where the Secretary is satisfied that an approved pharmacist is not carrying on business as a pharmacist at premises in respect of which the pharmacist is approved, the Secretary may, by notice in writing to the pharmacist, cancel the approval of the pharmacist under section 90’.
As Whitlam J noted in Shaffer v Secretary, Department of Health and Aged Care (2002) 124 FCR 234 at 240:
‘… the decision-maker’s satisfaction that a pharmacist is not carrying on business enlivens the discretion but does not dictate the outcome of its exercise.’
It is not in dispute on this appeal that an occasion for the exercise of the discretion conferred by the section by the Tribunal had been enlivened. The applicants had ceased to carry on business at the approved premises at Shops 102-104 Mount Ommaney Centre in August 2002.
The decision to cancel approval with effect from 12 May 2003 was made on that day by Mr Mark Davis, a delegate of the Secretary of the Department of Health and Ageing, who was Acting Manager, Business Operations Branch of the Health Insurance Commission. The history of that approval leading up to the decision to cancel was set out by the Tribunal as follows:
‘4.On 14 October 1998, the Applicants were approved (approval number 30210B) for the purposes of supplying pharmaceutical benefits on demand at or from premises situated at Shops 102-104 Mount Omaney Centre, pursuant to section 90 of the Act.
5.On 17 July 2002, the Applicants applied to the Respondent to “deactivate” the approval for six months for three reasons, namely:
(a) The business traded at a loss for some time;
(b) Their lease had expired, negotiations for a new lease had broken down and they were going to quit the premises on 12 August 2002;
(c) They proposed to relocate the pharmacy premises to an area outside the shopping centre.
6.On 3 August 2002, a delegate of the Respondent [one Michelle Capitaine] gave approval for shop 102 to temporarily close from 12 August 2002 to 11 February 2003 on the understanding that the pharmacy at new premises would commence trading within six months.
7.On 10 February 2003, the Applicants sought an extension of time of a further six months for temporary closure on the basis that they had been unable to secure alternative premises.
8.On 20 February 2003, the delegate of the Respondent indicated by letter to the Applicant’s solicitors that she was reluctant to grant an extension. She said that to qualify for deactivation under section 98(3) of the Act, arrangements must be in train to “transfer” the approval to another location and the Australian Community Pharmacy Authority (ACPA) must be aware of the transfer. She said that she was minded to cancel pharmacy approval 30210B, but that she would consider written submissions to her before taking that step.
9.After considering written submissions, the delegate decided, on 10 March 2003, to allow a further period of deactivation until 11 May 2003, on the understanding that the pharmacy located at the new premises would commence trading within the three months period from 12 February 2003 to 11 May 2003.
10.On 17 April 2003, the delegate wrote to the solicitors for the Applicants to point out that the Applicants had at that point in time taken over eight months in which to either re-open their pharmacy or apply for a relocation of their approval. She said that she was minded to not allow deactivation of the approval beyond 11 May 2003 but that she would consider further written submissions on the matter.
11.On 12 May 2003, a delegate of the Respondent cancelled approval number 30210B with effect from 12 May 2003.’
The reasons for that decision appear in the letter notifying the solicitors for the present applicants of the cancellation:
‘I have considered all the relevant material and correspondence in relation to exercising my discretion to cancel your client’s approval to supply pharmaceutical benefits under approval number 30210B.
I am satisfied that the approved pharmacists are not now and have not been carrying on business as pharmacists at the approved premises since 12 August 2002. I consider that allowing this situation to continue would involve an unacceptable delay in the supply of pharmaceutical benefits to the community that is serviced by Mt Ommaney shopping centre, and that I would be derelict in my duty to facilitate the efficient distribution of pharmaceutical benefits within the community if I were to further postpone the making of a decision under s.98(3) of the Act.
As outlined in my letter dated 17 April 2003 I am not prepared to allow your clients further time to relocate their approval. As such I am not prepared to refer Mr John Arthur Neilson’s request to the ACPA, to relocate your client’s approval to Coolum Markets Shopping Centre, Coolum Beach, Queensland, 4573.’
The Tribunal referred to Guidelines which have been made relating to the ‘Deactivation of Pharmacist Approvals made under s90 of the National Health Act 1953’ which relevantly provide:
‘… any pharmacist who ceases to carry on business at the premises in respect of which he/she is approved – subject to these guidelines – places themselves at immediate risk of having their approval cancelled.
…
These guidelines outline the circumstances in which the delegate may be prepared to allow an approval to be temporarily “deactivated”.This is not an expression used or defined in the National Health Act 1953. It is, instead an administrative concept, intended to describe – in a shorthand way – the situation which arises when a delegate decides not to cancel an approval under s98(3) notwithstanding that the statutory precondition to such a decision (namely, that the holder of an approval under s90 of the National Health Act 1953 has ceased to carry on business at relevant premises) has been satisfied.
…[These guidelines] do not bind the delegate who is legally obliged to take into account all relevant circumstances in reaching a decision in individual cases.
…3 GENERAL STATEMENT OF POLICY
In general terms, delegates will give consideration to permitting an approved pharmacist to deactivate a s90 approval by closing a pharmacy where it can be shown that:
·arrangements are in train to allow the approval to be “transferred” to another location and the Australian Community Pharmacy Authority (ACPA) is aware of that transfer, or
·the holder is able to demonstrate that the closure is temporary and that the premises will re-open within a reasonably short time frame (not more than 6 months).
In all cases, the delegate will not entertain an application for deactivation where the decision to close the premises is linked to the continuing commercial viability of the site.
As set out below, circumstances which may warrant the favourable exercise of the discretion to deactivate an approval may include:
·where the holder wishes to relocate the approval to new premises;
·where there has been a change of ownership at the premises;
·where the holder is obliged to close the pharmacy in order to take leave of absence; and
·where the premises are closed to allow a redevelopment to the premises themselves or the surrounding commercial areas.’
The Tribunal made findings of fact, none of which has been challenged on the appeal:
‘(a)In 1987 the Applicants bought a pharmacy in the Mt. Ommaney Centre, for $235,000.
(b)In 1995, the Centre was redeveloped and the Applicants relocated to Shops 102 and 104 in the northern mall.
(c)Over time the tenant mix in the northern mall changed from retail to banking. This dramatically reduced customer flow to the pharmacy, especially outside banking hours. The finances of the pharmacy went from a position where it had been making small profits to a position where it was making large losses. The figures supplied by Mr. Prior were:
YEARLOSS
1996 $137,411.64
1997 $154,571.12
1998 $109,137.08
1999 $382,615.06
2000 $192,555.69
2001 $82,514.75
2002 $196,726.83
$1,255,532.17
When the Applicants closed the pharmacy in August 2002, they had accumulated a debt of approximately $1.3M.
(d)In 2001, a second pharmacy, located in the same Centre but at a better location (Shops 39 and 40), came on the market. Mr. Prior purchased the second pharmacy in partnership with Mr Rogers’ wife. The purchase price was $2.6M.
(e)From March 2000, the Applicants attempted to re-negotiate their lease for Shops 102 – 104. They sought a reduction in rent, and an exemption from other expenses. They continued negotiations over the following two years, until the lease expired on 12 June 2002. The negotiations were not successful as far as the Applicants were concerned and they vacated the premises on 12 August 2002.
(f)The Applicants have looked at the possibility of re-locating to sites outside the Mt. Ommaney Centre. One site which looked like a possibility at a new shopping centre a few kilometres away has disappeared because the shopping centre did not “take off” and, although it is relatively new, it is practically deserted and looks bad.
(g)The area is well served with pharmacies. On a view of the area the Tribunal visited nine pharmacies outside the Mt. Ommaney Centre, all within a radius of a few kilometres from the Centre.
(h)The Applicants attempted to “sell” their approval to a pharmacist in Coolum but the transaction fell through because approval at the new site had been granted to a pharmacist other than the purchaser.
(i)The Applicants cannot now sell their approval because it has been cancelled. If they were able to sell, it would be worth about $100,000 on the pharmacy market.
(j)The Applicants do not currently have a new pharmacy site to which their approval would be transferred. Even if they did, the transfer of approval process, particularly to a site at a new shopping centre could take 12 months.
(k)If approval number 30210B is not cancelled and remains de-activated, it blocks any other pharmacist from obtaining approval to operate from the Mt. Ommaney Centre, apart from Mr. Prior and Mrs. Rogers at Shops 39-40.
(l)The Mt. Ommaney Centre has in excess of the number of tenants needed for approval of two pharmacies. Consequently, if approval number 30210B is cancelled, there would inevitably be a grant of approval for a second pharmacy to operate at the centre, in its place.
(m)There have been a number of pharmacists who wish to apply for a grant of approval to operate a second pharmacy at the Mt. Ommaney Centre.’
The Tribunal referred to two of the aims of the legislation concerning pharmacy approvals from clause 4.1(a) and 4.1(f) of the Third Community Pharmacy Agreement (“the Agreement”) between the Commonwealth of Australia and the Pharmacy Guild of Australia, namely:
‘(a)To provide consumers with reasonable equality of access to quality pharmacy services in their local community; and
(b)To maximise the value to the taxpayer by encouraging an effective and efficient community pharmacy network.’
The Tribunal noted that:
‘To this end there has in recent years been a more even distribution of pharmacy sites throughout the community than there had been in the past. A new pharmacy will only be approved in an area where there is demonstrated need and where the area is not already adequately served by an existing pharmacy. …’
The reasoning of the Tribunal leading to its conclusion to affirm the decision to cancel the approval appears from pars 17 – 21 of the Tribunal’s reasons:
17.Whilst it is obvious that pharmacies will be bought and sold, it is apparent from this case that one of the unintended consequences of the scheme of control of approvals is to create a significant market for approvals. The estimated value of the approval in this case is $100,000. The purchase price of the pharmacy at Shops 39-40 was $2.6M. This seems to go squarely against one of the objects of the legislation which is to keep costs of dispensing pharmaceuticals down.
18.The Tribunal notes that the Guide specifically excludes consideration of continuing viability of the site in the exercise of the discretion to deactivate an approval.
19.This case really boils down to the competing interests of (i) the Applicants who seek another six months at least to see if they can sell their approval for $100,000, (ii) pharmacists who may wish to obtain approval to open a second shop in the Mt. Ommaney Centre, and (iii) customers who may benefit from the competition between two pharmacies at the Centre.
20.The Tribunal is fully aware that trading in approvals is a fact of life and was probably inevitable, but the Tribunal does not intend to create a situation where it is encouraged or assisted.
21.On balance, and taking the objects of the legislation and the Guide into account, the Tribunal finds that the correct and preferable decision was to cancel the approval.’
The contention of the applicants is that the Tribunal erred in law. Mr J. Logan SC, counsel for the applicants, argued that in saying that the Tribunal ‘does not intend to create a situation where [trading in approvals] is encouraged or assisted’, the Tribunal failed to take into account one or both of what are said to be relevant considerations, namely:
‘(A)that the Guidelines promulgated in respect of the exercise of a discretion under s. 98(3) of the Act and the Ministerial Determination made pursuant to s. 99L(1) of the Act (in particular rules 6 (ab), 6A (a)(ii), 6B (a)(ii) and 7 (ab) were, in furtherance of the Third Community Pharmacy Agreement between the Commonwealth of Australia and the Pharmacy Guild of Australia, as a means of achieving equity of access to viable pharmaceutical services for the Australian public (clause 27.1 of the Agreement refers), each predicated upon the existence of a market in which there would be arrangements between pharmacists for the transfer of approvals from one location to another;
(B)that relocation of an existing approval is a means by which the object of “a more even distribution of pharmacy sites throughout the community than there had been in the past” (Reasons paragraph 16) can be met.’
It is further asserted on behalf of the applicants that:
‘The tribunal misconstrued the Guidelines promulgated in respect of the exercise of a discretion under s. 98(3) of the Act and the Ministerial Determination made pursuant to s. 99L(1) of the Act (in particular rules 6 (ab), 6A (a)(ii), 6B (a)(ii) and 7 (ab) by failing to appreciate that each was predicated upon the existence of a market in which there would be arrangements between pharmacists for the transfer of approvals from one location to another.’
It was contended on behalf of the applicants that the reasons that the Tribunal disclosed failed to recognise that one of the policy objectives in relation to both the granting of approvals and their cancellation was to maintain a ‘viable and well distributed community pharmacy network’. It was said that in stating that ‘the Tribunal does not intend to create a situation where [trading in approvals] is encouraged or assisted’, the Tribunal misconceived that agreements for the relocation of pharmacy approvals are not just a ‘fact of life’, but a means recognised by the Guidelines and the Rules, whereby the policy objective of maintaining a viable and well distributed community pharmacy network was to be achieved. The claim by the applicants is that the Tribunal erred, in that it confined its consideration to micro-economic considerations, whereas policy required it to consider not just those but also the macro-economic benefits that might flow from the relocation of the applicant’s approval to a location entirely remote from Mt Ommaney, but where there existed a demand for the supply of pharmaceutical benefits.
It was submitted that the Agreement, the Rules and the Guidelines lead to the conclusion that one of the ways in which the Executive Government envisaged that a ‘viable and well distributed community pharmacy network’ would be achieved would be via the impact of market forces, reflecting community needs and demands, as to the location of pharmacies.
It was contended that the Tribunal had set its face against the policy of the Executive Government, as reflected in the Agreement, the Rules and the Guidelines without explaining why, in the particular case, that policy ought not to be applied. It was said that the trading in approvals was not an ‘unintended consequence’ of the scheme of control of approvals, but was an intended consequence entitled to due weight in the balancing exercise to which the Tribunal referred. The essential contention on behalf of the applicants was that there was unchallenged evidence as to the existence of a market in Australia for the “relocation” of pharmacy approvals, and that there was unchallenged evidence that Mr Neilson, referred to in the reasons for decision of the primary decision-maker in the letter of 12 May 2003, could arrange the “sale” of the applicants’ approval for $100,000 ‘with little difficulty’ and that there were at least three other pharmaceutical brokerages in Queensland and New South Wales who, in Mr Neilson’s opinion, would be able to effect a similar sale quickly.
It was thus submitted that because the evidence pointed to the strong possibility that the present applicants would be able to sell their approval for the “relocation” of their pharmacy approval, the Tribunal should have found that such a market existed, with the consequence that the Tribunal ought not to have affirmed the decision to cancel the approval.
It was contended for the applicants that the Tribunal’s decision should be set aside and the matter remitted to the Tribunal for hearing and determination according to law.
The applicants contend that the Tribunal failed to take a relevant consideration into account - see subs 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) - in that it is submitted that the exercise of the subs 98(3) discretion by the Tribunal was not assessed on the merits by reference to a wider relocation market, but was exercised by reference to the merits of cancellation only in the context of the Mt Ommaney Centre or its surrounding suburbs.
Deane J in Sean Investments Pty Ltd v MacKellar (1982) 38 ALR 363 said at 374-375:
‘… a failure to take a relevant consideration into account in the exercise of a power is, under s 5(1) and (2)(b), a permissible ground for attacking a decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. In this regard, I consider that the following comments of the United Kingdom Court of Appeal (Megaw, James and Geoffrey Lane L JJ) in Elliott v Southwark London Borough Council [1976] 2 All ER 781; [1976] 1 WLR 499 at 507, in relation to a local authority, are appropriate in respect of the recommendations of the Committee and the decision of the Minister in the present case: “It is clear that the matters which the local authority should consider … vary from case to case. It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions.”
In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.’
The view of Deane J was adopted by Mason J (as he was then) in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40:
‘What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. (1979) 144 C.L.R. 45, at pp.49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury (1937) 56 C.L.R. 746, at pp.757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 C.L.R. 492, at p.505. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.’
The failure asserted by the applicants, namely that the Tribunal directed its attention to the micro-economic aspects of the cancellation of the applicants’ approval and failed to have regard to macro-economic considerations of such cancellation, is said to be demonstrated by the reasoning in pars 19 and 20 of the Tribunal’s reasons earlier set out.
In my opinion, there may be room to think that the Tribunal was not bound, by the subject matter, scope and purpose of the Act, to take macro-economic considerations into account, conformably with the views of Deane J and Mason J set out above.
However, in my judgment, when the matter is looked at in context, there was no such failure by the Tribunal. The Tribunal was aware that there was a market in approvals. So much is confirmed by the first sentence at par 19 of its reasons. The Tribunal was further aware that there was no geographical restriction of that market to the Mt Ommaney area. The Tribunal was aware that the first deactivation of the approval of six months from 12 August 2002 until 11 February 2003 was so that the applicants could secure alternative premises. The extension of the deactivation of the approval from 12 February 2003 to 11 May 2003 was granted in the knowledge that the applicants had failed to secure a lease at the Mt Ommaney Shopping Centre, but were hopeful of securing premises opposite.
On 17 April 2003 the applicants were informed that the delegate of the Minister was not minded to extend their deactivation beyond 11 May 2003, and were requested to make written submissions as to why she should not exercise her discretion to cancel the approval on this date. Those submissions were not received by the respondent prior to the requested date of 8 May 2003.
On 9 May 2003 there was the first communication about an application to relocate approval number 30210B to Shop 10 Coolum Market Place on behalf of John Arthur Neilson. This attempted “sale” to Mr Neilson was in respect of a relocation to premises at Coolum.
On 16 May 2003, the representative of Mr Neilson was advised that the application to relocate approval 30210B to Coolum could not be referred to the ACPA, as the approval was not available. The Neilson “sale” fell through, not because cancellation brought that proposal to an abrupt end, but because there was a blocking application in Coolum which precluded the Neilson application from being approved and, in any event, the Coolum premises would not be ready within six months of the application.
Mr Neilson gave evidence to the Tribunal that if the approval of Mr Rogers and Mr Prior was “resurrected”, it would be too late for him to acquire it, because he has a contract for an approval in respect of the Coolum premises which is a number ‘which I think was cancelled in New South Wales’, but that it would not be too late for Mr Rogers and Mr Prior to sell their approval, and he believed that they would on-sell it.
As the reasons for decision of the delegate of the Secretary of the Department of Health and Ageing dated 14 July 2003 indicate, what the applicants wanted (and what they urged on the Health Commission) was further time before cancellation so that they could “sell” the approval, wherever the new premises might be.
The Tribunal was very conscious of this purpose. The Deputy President asked Mr Prior in evidence:
‘If you’re successful in this application, what do you intend to do?’
and Mr Prior said:
‘The options are open to us. We can sell immediately to the market, I’m informed and then there would be an application would have to go into the ACPA so we could sell that number immediately, I’m told.’
Importantly, particularly in relation to the claimed error by the Tribunal, at the conclusion of Mr Neilson’s evidence the Deputy President said:
‘Just before he goes, what concerns me now is that I suppose Mr Nielsen’s situation at Coolum is irrelevant, is it? That’s the point. You’re wanting a bit of extra time so they can explore some other option. That what it’s all about, is it?
MR LOGAN: Mr Nielsen’s particular application is irrelevant now, that’s right.
[THE D.PRESIDENT:] Yes.
MR LOGAN: Yes. There’s a potential to be skewed away to worrying about that.
THE D. PRESIDENT: I mean, if you get some extra time now you’ll be looking for another - - -
MR LOGAN: Another Mr Nielsen.
THE D. PRESIDENT: - - - another Mr Nielsen.
MR LOGAN: That’s what it would come to.’
The Tribunal was aware of the financial consequences to the applicants from cancellation. It was aware that the applicants had had from the cessation of carrying on business on 12 August 2002 until 12 May 2003 to attempt to obtain a relocation of their approval. It was aware that previous attempts to “sell” the approval had not been restricted to the Mt Ommaney area; it was also aware that the ongoing postponement of cancellation had a blocking effect on pending applications in the Mt Ommaney area.
In my judgment, the exercise of discretion by the Tribunal expressed in the words ‘On balance, and taking the objects of the legislation and the Guide into account, the Tribunal finds that the correct and preferable decision was to cancel the approval’, does not reveal any error of failing to take into account a relevant consideration.
The appeal should be dismissed, with costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender Associate:
Dated: 13 May 2004
Counsel for the Applicant: Mr John A. Logan, SC Solicitor for the Applicant: McCarthy Holzberger Counsel for the Respondent: Mr Jamie Stephenson Solicitor for the Respondent: Mr Andrew Collins Date of Hearing: 30 April 2004 Date of Judgment: 13 May 2004
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