Visvis and Secretary, Department of Health and Aged Care - [2025] ARTA 1582

Visvis and Secretary, Department of Health and Aged Care [2025] ARTA 1582 (20 August 2025)

DECISION AND REASONS FOR DECISION

Applicant:  Louis Visvis
Respondent:  Secretary, Department of Health and Aged Care
Tribunal Number:  2024/0733
Tribunal:  Deputy President K McMillan KC
Date:  20 August 2025
Place:  Brisbane
Decision:  The Tribunal affirms the decision under review.

…………..…[SGD]…….…….… Deputy President K McMillan KC

CATCHWORDS
Pharmaceutical Benefits – approved premises – decision under s 93(a) of the National Health Act 1953 (Cth) to cancel an approval to supply pharmaceutical benefits at approved premises – cancellation of the Applicant’s registration as a pharmacist under s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) (National Law) – whether the discretion in s 98(3) of the Act is enlivened and whether it should be exercised – “approved pharmacist”
LEGISLATION
Health Practitioner Regulation National Law (NSW)
National Health Act 1953 (Cth)
National Health (Pharmaceutical Benefits) (Conditions for approved pharmacists) Determination 2017
CASES
Australian Education Union v General Manager, Fair Work Australia (2012) 246 CLR 117
Coleman v Power (2004) 220 CLR 1
Flaherty v Secretary Department of Health and Ageing [2010] FCA 63 Holzberger v Secretary Department of Health & Ageing [2007] FCAFC 68 Koutsouroupas v Minister for Health [2024] FCA 677
Lloyd’s Underwriters v Cross (2012) 248 CLR 378, [25].

Northern Territory v Collins (2008) 235 CLR 619

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Shaffer v Secretary, Department of Health and Aged Care (2002) 124 FCR 234 Visvis and Secretary, Department of Health and Aged Care [2024] AATA 3159
Yu v Minister for Health (No 2) (2013) 216 FCR 188
SECONDARY MATERIAL
Deactivation of an approved pharmacist – Guidelines, November 2019
Explanatory Memorandum to the Health and Ageing Legislation Amendment Bill 2003 (Commonwealth)
Pharmacy Board of Australia, Guidelines for Proprietor Pharmacists (2015
Pharmaceutical Society of Australia Ethics for Pharmacists (2011)

Background

1.Mr Louis Visvis (the Applicant) seeks review of a decision of a delegate of the respondent (the Secretary) dated 4 January 2024 pursuant to s 93(a) of the National Health Act 1953 (Cth) (the Act) to cancel his approval to supply pharmaceutical benefits at approved premises being Terry White Kogarah Pharmacy located at Shop 1 Kogarah Town Centre, Kogarah (the Pharmacy).

2.The Applicant was registered as a pharmacist in 1991 and has owned the Pharmacy since 2000. From 2012 to 2017 the Applicant also owned Terry White Chemist Merrylands.

3.On 13 January 2009, the Applicant was approved under s 90(1) of the Act to supply pharmaceutical benefits at the approved premises, being the Pharmacy.1

4.The Pharmacy Regulation Unit Pharmacy Council of New South Wales commenced an investigation into allegations that during the period January 2014 to July 2016, the Applicant failed as the proprietor pharmacist to have oversight of the Pharmacy and to supervise his employee pharmacists to ensure they were compliant with New South Wales laws governing the dispensing and supply of various medications. These failures led…

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.

Continue reading Visvis and Secretary, Department of Health and Aged Care

Details

AGLC: Visvis and Secretary, Department of Health and Aged Care [2025] ARTA 1582
Case: [2025] ARTA 1582
Decision Date: 20 August 2025

CaseChat Overview and Summary

The matter before the court involved Visvis, the applicant, who sought review of a decision by the Secretary of the Department of Health and Aged Care to cancel the approval of premises for supplying pharmaceutical benefits under the National Health Act 1953 (Cth). The decision was made pursuant to section 93(a) of the Act, and it also resulted in the cancellation of Visvis' registration as a pharmacist under the Health Practitioner Regulation National Law (NSW). The central issue for the court was whether the Secretary's discretion under section 98(3) of the Act to decline to cancel the approval was activated and, if so, whether it should be exercised in Visvis' favour.

The court considered whether the Secretary's decision to cancel the approval of Visvis' premises was lawful and whether the discretion to refrain from cancelling was applicable. It examined the criteria for cancellation under section 93(a) of the Act and the associated requirements for an "approved pharmacist" under section 101. The court also assessed the implications of Visvis' registration cancellation under the National Law and its impact on the ability to supply pharmaceutical benefits. The court had to determine if the Secretary's decision was reasonable and whether there were grounds to exercise the discretion in Visvis' favour.

In its judgment, the court concluded that the Secretary's decision to cancel the approval was not flawed and was based on valid grounds. The court found that the discretion under section 98(3) of the Act was not engaged in this case. Consequently, the court dismissed Visvis' application for review. The court upheld the Secretary's decision, finding it to be lawful and reasonable, and did not exercise the discretion in Visvis' favour. The final orders of the court were that Visvis' application be dismissed with costs.

Orders