Visvis and Secretary, Department of Health and Aged Care

These interlocutory proceedings concerned an application by the Secretary, Department of Health and Aged Care (the respondent) to revoke a stay order previously granted by the Administrative Appeals Tribunal (AAT) to Louis Visvis (the applicant). The stay order, made on 29 April 2024, had suspended the effect of a decision to cancel the applicant's approval to supply pharmaceutical benefits. The respondent sought revocation on the grounds that the applicant had failed to comply with a condition of the stay and demonstrated a disregard for the statutory scheme governing pharmacists and pharmacies. The applicant opposed the application.

The primary legal issue before the Tribunal was whether the applicant had breached the condition of the stay order, which permitted him only to seek the transfer of the pharmacy premises at Kogarah to his brother, James Visvis. The Tribunal was required to determine if the applicant's actions, or the respondent's conduct in relation to the transfer application, constituted a failure to comply with the spirit or letter of the stay order, thereby justifying its revocation.

The Tribunal reasoned that the condition of the stay order did not compel the respondent to approve the transfer application, but rather allowed the applicant to pursue it. While the applicant argued that the respondent's refusal to determine James Visvis's application for approval of the premises was an obstruction contrary to the stay, the Tribunal found that the stay orders did not impose any positive obligation on the respondent. The Tribunal noted that the applicant's own conduct, including the cancellation of his pharmacist registration in 2020, failure to notify the Department of this cancellation, and continued supply of pharmaceutical benefits in breach of the stay condition, weighed against him.

The Tribunal granted the respondent's application and revoked the stay order. The Tribunal concluded that the applicant had not complied with the condition of the stay and had demonstrated a lack of regard for the statutory scheme. The potential consequences for the approved premises and its customers were considered, but given less weight in light of the applicant's history of non-compliance.