Visvis and Secretary, Department of Health

[2024] AATA 923

Visvis and Secretary, Department of Health [2024] AATA 923 (29 April 2024)

Division:                  GENERAL DIVISION

File Number(s):      2024/0733

Re:Louis   Visvis

APPLICANT

AndSecretary, Department of Health

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:29 April 2024

Place:Sydney

THE TRIBUNAL ORDERS that:

1. Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal extends the time for the making of an application for review of the decision of the Respondent up to 4 January 2024.

2. Pursuant to section 41(6) of the Administrative Appeals Tribunal Act 1975 (Cth), the operation of the decision of the respondent dated 4 January 2024 is stayed until the decision of the Tribunal on that application for review comes into operation or until further order, AND is subject to the following condition:

   a.The applicant will not take any steps, or do anything under the present order, or otherwise act contrary to the orders made by NCAT on 3 July 2020, other than seek to transfer the pharmacy at Kogarah to his brother.

   ............................[SGD]............................................

   Deputy President B W Rayment OAM KC
   

   CATCHWORDS – ADMINISTRATIVE – interlocutory application – request for extension of time – request for stay of decision of the respondent – where only minimal delay in request for extension – Extension of time granted – stay of application granted with condition

   LEGISLATION

   Administrative Appeals Tribunal Act 1975 (Cth)

   Health Practitioner Regulation National Law 2009 (NSW)

   National Health Act 1953 (Cth)

   REASONS FOR DECISION

   Deputy President B W Rayment OAM KC

   29 April 2024

3. In these interlocutory proceedings, the applicant, a former registered pharmacist under State law, seeks an extension of time in order to seek review of a decision to cancel his approval to supply pharmaceutical benefits under s. 98(3) of the National Health Act, 1953.  That decision of the respondent’s delegate would bring the Commonwealth position into line with the State position. If that were the only application before the Tribunal, it would have merit since the applicant’s solicitor appears to be the only person responsible for the delay in filing the application for review; It was two business days’ late.

4. However, the applicant also seeks a stay of the respondent’s decision under s.41(2) of the Administrative Appeals Tribunal Act, 1975. Such an order may be made upon conditions, as s.41(6) provides. The circumstances are very unusual.

5. Under the Health Practitioner Regulation National Law (NSW) 2009 (the NSW Act) the Pharmacy Council of NSW was established as a regulator of pharmacies in NSW. Complaints made to the Pharmacy Council or to the Health Care Commission, may be referred in serious cases to the Tribunal given powers under the Act, the Civil and Administrative Commission (NCAT).

6. The Health Care Complaints Commission referred a complaint concerning the applicant to NCAT which dealt with the applicant by cancelling his registration under s.149C(1)(b) of the NSW Act. On 31 July 2020, in the course of its reasons, the NCAT made adverse findings against the applicant, and ordered that he may not apply for review of that order for two years. So far as the papers before me indicate, he made no such application in or after July 2022.

7. In these proceedings, the respondent is the Secretary of a Commonwealth agency (the Department of Health and Aged Care with authority under the National Health Act, 1953 (the Commonwealth Act). The Commonwealth Act provides in s.4 that the word “pharmacist” means a person registered as a pharmacist under the law of a State or Territory providing, inter alia, for the registration of pharmacists. By s.90, the Secretary may, upon application by a pharmacist to supply pharmaceutical benefits at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at those premises.

8. Such an approval was granted in respect of the present applicant for premises at Kogarah in 2009. Section 98 of the Commonwealth Act provides for cancellation by the Secretary of an approval granted under s.90 in certain circumstances.

9. The Department says that it was unaware of the NCAT order until September 2023 and it appears that no action was taken under s.98 until late  2023, which culminated in an order made under s.98 against the applicant on 4 January 2024, being the decision in respect of which an extension of time is now sought to seek review in the Tribunal.

10. One assumes that the applicant may not have practised as a pharmacist in Kogarah after 3 July 2020, although I am not sure that there is evidence to that effect before me. The applicant appears to have agreed to sell the pharmacy to his brother in 2021, and application was made to the Pharmacy Council to transfer the pharmacy from the applicant to him.  That application was dealt with tardily by the Pharmacy Council and, in the upshot, approval to transfer the pharmacy to the applicant’s brother was not given by the Pharmacy Council until February 2024.

11. The respondent was in separate contact with both the present applicant in 2023 and earlier, and nominated or agreed to fixing a date for the respondent to be told that the Pharmacy Council had or had not approved the transfer of the pharmacy to the applicant’s brother.

12. On 17 October 2023 the respondent told the applicant’s brother that his application to supply pharmaceutical benefits under s.90 of the Commonwealth Act  was refused and suggested that the application be renewed if the issues with the Pharmacy Council were resolved.  The applicant’s brother was represented by the same solicitor as the applicant.

13. On 4 January 2024, the respondent then made the reviewable decision.

14. The respondent’s decision to cancel the applicant’s approval seems to have been related to the applicant’s then failure to obtain consent from the Pharmacy Council for the transfer of the pharmacy from the applicant to his brother.

15. On an application for a stay of a reviewable decision, it is not the function of the Tribunal to determine the merits of the review itself.  It is normally sufficient for the Tribunal to say that the case to be made on review of the decision is arguable.

16. One matter which may have been relevant to be taken into account by the respondent, in deciding whether to cancel the applicant’s approval, and a matter which the respondent in fact may have taken into account, is that, as at 4 January 2024, no consent had been given by the State regulator to the transfer of the pharmacy from the applicant to his brother.

17. Subject to one condition to be mentioned below, I conclude that it is desirable to grant the applicant a stay of the reviewable decision until the hearing and determination of the application for review, or further order, there being no prejudice suffered by any other person, and that the applicant have an extension of time for that purpose up to and including the date of his application for an extension of time filed on 6 February 2024.

18. The condition on which the stay order is made is that the applicant will not take any steps or do anything under the present order for a stay other than seeking to transfer the pharmacy at Kogarah to his brother, and, in particular, that he will not act contrary to the orders made by the NCAT on 3 July 2020.

    ORDERS

    THE TRIBUNAL ORDERS that:

19. Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), and upon written application by the applicant dated 6 February 2024, the Tribunal extends the time for the making of an application for review of the decision of the Respondent up to 4 January 2024.

20. Pursuant to section 41(6) of the Administrative Appeals Tribunal Act 1975 (Cth), the operation of the decision of the respondent dated 4 January 2024 is stayed until the decision of the Tribunal on that application for review comes into operation or until further order, AND is subject to the following condition:

    a.The applicant will not take any steps, or do anything under the present order, or otherwise act contrary to the orders made by NCAT on 3 July 2020, other than seek to transfer the pharmacy at Kogarah to his brother.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

.................................[SGD].......................................

Associate

Dated: 29 April 2024

Date(s) of hearing:	15 March 2024
Counsel for the Applicant:	Mr L Fermanis
Solicitors for the Applicant:	Ms K Conomos, Conomos & Spinak Lawyers
Solicitors for the Respondent:	Ms M Donald, Sparke Helmore Lawyers