Stambe v Minister for Health

The matter before the court was an application for review of a decision by the Minister for Health, pursuant to s 90A(2) of the National Health Act 1953 (Cth), granting approval to YL Health Group to supply pharmaceutical benefits at particular premises. The applicant, Mt Stambe, who owns two pharmacies close to the proposed pharmacy, challenged the Minister’s decision on several grounds, including whether the Minister failed to observe procedures required by law, failed to consider comments, information, and documents provided by the applicant, and took into account irrelevant considerations or failed to take into account relevant considerations. The court was also required to consider the scope of the Minister’s discretion under s 90A(2) and the interpretation of the Minister’s obligation under s 90D(3) of the Act to consider comments, information, or documents provided by a person at the Minister’s invitation.

The court held that the Minister failed to consider the materials provided by the applicant, as required by s 90D(3) of the Act. The Minister had prepared draft reasons for his decision, which were subsequently adopted by him, but there was no evidence to suggest that the Minister had read the materials provided by the applicant before making his decision. The court found that the Minister’s consideration was informed by a Ministerial briefing note, which did not include the applicant’s submissions. The court rejected the argument that the Minister was not legally obliged to read any source material submitted to him before exercising the power under s 90A(2), as the obligation to consider the material was mandatory. The court also dismissed the other two grounds of review, finding that the matters raised by the applicant were neither irrelevant nor mandatory considerations, and that there was no error in the definition of “community” adopted by the Minister.

In conclusion, the court allowed the applicant’s first ground of judicial review, finding that the Minister failed to consider the materials provided by the applicant. The court will allow the parties an opportunity to agree upon appropriate relief, or failing agreement, make submissions on that matter. The court will determine the question of appropriate final orders on the papers.