Strutt & Anor v Australian Community Pharmacy Authority - [2006] FMCA 1245

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STRUTT & ANOR v AUSTRALIAN COMMUNITY PHARMACY AUTHORITY & ORS [2006] FMCA 1245

ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act 1977 – Decision to grant pharmacy approval – whether reviewable – whether error –whether denial of natural justice by failing to give opportunity to make submissions before approval – decision remitted by Administrative Appeals Tribunal – meaning of ‘catchment area’ – whether error in identification of ‘catchment area’ – ‘definite community need’.

National Health Act 1953, ss.90, 99K, 99L, 135A
Administrative Appeals Tribunal Act 1975, s.29(1)
Administrative Decisions (Judicial Review) Act 1977, ss.5(1)(e), 5(1)(f), 5(2)(g)

Re Hargreaves and Australian Community Pharmacy (No2) 148 ALD 147
AG (NSW) v Quinn (1990) 170 CLR 1
Annetts v McGann (1990) 170 CLR 596
Haoucher v Minister for Immigration (1990) 169 CLR 648
Minister for Immigration v Teoh (1995) 183 CLR 273
Kioa v West (1985) 159 CLR 550
Wood v Australian Community Pharmacy Authority (2002) FCA 1592
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411
Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589
Pharmacy Guild of Australia and Ors v the Australian Community Pharmacy Authority and Ors (1996) 46 ALD 310
Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Corio Bay and District Private Hospital NH Pty Ltd v Minister for Family Services and Ors (1998) 87 FCR 37
Russell v Duke of Norfolk (1949) 1 All ER 190
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
McWilliam v Civil Aviation Authority [2004] FCA 1701

Applicants: RICHARD STRUTT and HILL TUCKER

First Respondent: AUSTRALIAN COMMUNITY PHaRMACY AUTHORITY

Second Respondent: SECRETARY OF DEPARTMENT OF HEALTH AND AGEING

Third Respondent: MARISA ARENA

File number: PEG242 of 2005

Judgment of: McInnis FM

Hearing date: 15 March 2006

Delivered at: Perth

Delivered on: 28 August 2006
REPRESENTATION

Counsel for the Applicants: Mr R.M. Niall

Solicitors for the Applicants: Christensen Vaughan

Counsel for the First and Second Respondents: Mr P. McLiver

Solicitors for the First and Second Respondents: Australian Government Solicitor

Counsel for the Third Respondent: Mr S. Burley

Solicitors for the Third Respondent: Guild Legal
ORDERS
The Application be dismissed with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH
PEG242 of 2005

RICHARD STRUTT AND HILTON TUCKER
Applicants
And

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
First Respondent

SECRETARY OF DEPARTMENT OF HEALTH AND AGEING
Second Respondent

MARISA ARENA
Third Respondent
REASONS FOR JUDGMENT
1.In this application, Richard Strutt and Hilton Tucker (the Applicants) seek to review a decision of Australian Community Pharmacy Authority (the Authority) made on 26 August 2005 to recommend to the Secretary of Department of Health and Ageing and/or the Health Insurance Commission as delegate of the Second Respondent that approval…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FMCA 1245
Decision Date: 28 August 2006

CaseChat Overview and Summary

The matter of Strutt & Anor v Australian Community Pharmacy Authority was heard in the Federal Court of Australia. The applicants, Strutt and another, sought to challenge a decision made by the Australian Community Pharmacy Authority (ACPA). The applicants argued that the decision was unlawful, unreasonable, and not supported by the evidence. The ACPA opposed the application, asserting that the decision was made in accordance with the relevant legislation and was both lawful and reasonable.

The central legal issues before the court were whether the decision of the ACPA was lawful, whether it was based on unreasonable grounds, and whether it was supported by the evidence. The applicants argued that the decision was based on incorrect assumptions and that the ACPA had failed to properly consider certain evidence. The ACPA, on the other hand, contended that the decision was well-founded and that the applicants had not demonstrated any error on the part of the ACPA.

In delivering its judgment, the court examined the decision-making process of the ACPA and the evidence upon which the decision was based. The court found that the ACPA had followed the correct procedures and that the decision was both lawful and reasonable. The court also found that the ACPA had properly considered all relevant evidence and had not made any errors in its decision-making process. Accordingly, the court dismissed the application and ordered that the applicants pay the costs of the proceeding.

Orders

Orders of the court

The Application be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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