Stambe v Minister for Health (No 2)

In Stambe v Minister for Health (No 2), the applicant sought a review of the Minister’s decision to refuse the second respondent’s application for Ministerial approval to supply pharmaceutical benefits under the National Health Act 1953 (Cth). The case was heard by the Federal Court of Australia, which had to determine whether the Minister’s decision was legally sound and whether the orders should be made to remit the matter to the Minister for reconsideration or to set aside the decision. The court also had to consider the appropriate timing for such orders.

The primary legal issues before the court were whether the Minister’s decision was affected by legal error and what form the final orders should take. The court had to consider whether the Minister had exercised the discretion conferred on them by section 90A(2) of the National Health Act 1953 (Cth) lawfully and whether there was a duty on the Minister to grant the approval under section 90B(5) of the same Act. Additionally, the court needed to determine the appropriate timing for setting aside the decision and remitting the matter to the Minister, considering the potential financial and operational impacts on the second respondent.

The court found that the Minister’s decision was indeed affected by legal error and that the Minister had failed to consider all relevant factors. The court concluded that the appropriate remedy was to remit the matter to the Minister for reconsideration, allowing the second respondent to provide further information or documents. Regarding the timing, the court decided that both the setting aside order and the remitter order should take effect simultaneously, with the remitter order being made immediately after the setting aside order. This approach balanced the need for the Minister to reconsider the decision with the potential economic impact on the second respondent.

The final orders of the court set aside the Minister’s decision with effect from 9 am on 11 June 2019 and remitted the matter to the Minister for further consideration according to law. The court also ordered that the Minister invite the applicant to provide comments, information, or documents relevant to the request. Furthermore, the court ordered that the Minister pay the applicant’s costs, and the second respondent pay the applicant’s costs.