Wong and Secretary, Department of Health
[2019] AATA 5313
•22 October 2019
Wong and Secretary, Department of Health [2019] AATA 5313 (22 October 2019)
Division:GENERAL DIVISION
File Number: 2019/5503
Re:Tina Wong
APPLICANT
Wing Kit Tam
APPLICANT
AndSecretary, Department of Health
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:22 October 2019
Place:Brisbane
Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal refuses the applicant’s request for an order staying or otherwise affecting the operation or implementation of the respondent’s decision dated 21 August 2019.
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Deputy President Dr P McDermott RFD
Catchwords
STAY – Pharmaceutical Benefits Scheme – Whether a pharmacy should be granted the pharmaceutical benefits scheme – Accepted commercial risk – Refusal of stay application
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Health Act 1953 (Cth)
National Health (Australian Community Pharmacy Authority Rules) Determination 2018
Cases
Australian Community Pharmacy Authority v Eaves & Ors [1997] FCA 100
Civil Aviation Safety Authority v Hotop (2005) 145 FCR 232
Re Barnes and Civil Aviation Safety Authority (2015) 67 AAR 433
Shi v Migration Institute of Australia Ltd (2003) 134 FCR 326
Terry White Chemists Australia Fair v Secretary to the Department of Health and Aging (2009) 178 FCR 161
Trades College Australia Pty Ltd v Australian Skills Quality Authority [2018] AATA 1703 (12 June 2018)
Transglobal Airways Corporation v Civil Aviation Safety Authority [2010] AATA 68
Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246
Yu v Australian Community Pharmacy Authority [2013] FCA 713 at [8]-[9]
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
Decision and Reasons for Decision: 22 October 2019
Decision Published: 12 December 2019
BACKGROUND
On 11 April 2019, the applicants sought approval to supply pharmaceutical benefits from a pharmacy located in Hatton Vale, Queensland. On 17 May 2019, the Australian Community Pharmacy Authority (“the authority”) made a recommendation for the approval of the application.
On three occasions: on 5 July 2019; 18 July 2019; and 9 August 2019, the respondent sought advice from the applicants as to the number of medical practitioners retained by the Stellar Medical Centre, Hatton Vale (“the Centre”). The applicants advised the respondent that the respondent did not have the right to seek further information relating to the number of the medical practitioners at the Centre. On 5 July 2019, the applicants wrote to the respondent, stating that r 30 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (“the Location Rules”) sets out the relevant time period for meeting the full-time practicing requirement is between the date of application and the date of the recommendation of the authority.
On 8 July 2019, the pharmacy opened. On 21 August 2019, the respondent issued a decision refusing the applicants’ application for approval, under s 90 of the National Health Act 1953 (Cth) (“the Act”). On 30 August 2019, the applicants applied for review of the decision by the Tribunal, on the same day the applicants made an application to the Tribunal to stay the decision of the respondent.
The Tribunal has jurisdiction order a stay pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).
APPLICANTS’ SUBMISSIONS
The applicants submit that s 41(2) of the AAT Act is framed in broad general terms and should be given a liberal interpretation, in forming this view, the applicants rely on observations of Tamberlin J in Shi v Migration Institute of Australia Ltd (2003) 134 FCR 326 (“Shi”).
The applicants submit that a stay will secure the efficacy of the hearing and determination of the application and a stay.
On 21 August 2019, a delegate of the respondent made a decision to refuse to approve the premises pursuant to s 90 of the Act on the ground that item 130(b)(i) of the Location Rules was not satisfied at the time of the decision of the delegate. The relevant part of item 130(b)(i) of the Location Rules, which under s 10 of the Location Rules applies in the case of an application not involving the cancellation of an existing approval, refers to where:
“(b) the Authority is satisfied that, at all relevant times there is, within 500 m, in a straight line from the proposed premises, either:
(i) both the equivalent of at least one full time prescribing medical practitioner; and a supermarket with a gross leasable area of at least 1,000 m;”
The applicants submit that the applicants have prospects of success as the respondent incorrectly applied the requirement under item 130(b)(i) of the Location Rules.
The applicants have filed two affidavits from two medical practitioners located within 500m of the proposed premises.
The applicants have submit that the applicants have invested substantial funds in preparing to open the Pharmacy, including:
(a)$164,323.99 in shop fit out costs;
(b)$143,389.97 in ordering goods from suppliers; and
(c)$32,822.66 in other set up expenses.
The applicants submit that their interest will be prejudiced if a stay is not granted because the applicants will lose what they contend is the protective benefit of the authority’s recommendation whilst the decision is under review. As a result, the applicants are at risk of another pharmacy securing approval near the proposed premises. Should this occur, the applicants would be excluded from obtaining approval having regard to item 130(a) of the Location Rules. As a result, the applicants contend that the review would be rendered nugatory if a stay were refused.
The applicants contend that though no further applications have been filed, the risk is still a factor, material or immaterial, and the respondent does not explain why the applicants should be exposed to such risk. The applicants submit that there is a legal entitlement when a recommendation of the authority is received.
The applicants further submit that it is in the interests of the public for the pharmacy to remain an “approved premises” in order to have access to a convenient pharmacy. The applicants submit that there is utility, as under r 6(1) of the Location Rules the recommendation of the Authority confers “approved premises” status, the effect of which is to “block” any subsequent applications.
The applicants submit that an applicant cannot apply for an “approved premises” within 1.5km of another “approved premises”. The applicants contend that if the decision is not stayed then there would be possibility that another pharmacy would receive “approved premises” within 1.5km of the applicants proposed premises. The applicants further submit that there is utility in protecting the applicants’ commercial investment, as such expense could be lost pending the outcome of the review.
The applicants submit that the effect of a stay is to treat the decision as if the decision had not been made. The applicant relies on Transglobal Airways Corporation v Civil Aviation Safety Authority [2010] AATA 68, where Deputy President PE Hack SC remarked that when the Tribunal stays a decision it revives rights which ceased as a result of that decision. To this point, the applicants also rely on Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246. The applicants submit that this is also how s 41(2) of the AAT Act ought to be read. The applicants state “the stay operates as a restoration as if the decision had not been made”.
The applicants submit that s 41(2) is a complimentary power to s 43 of the AAT Act, to preserve the efficacy of the Tribunal’s review powers. The applicant further relies on Shi where the Court took the view that the migration agent ought to be taken as registered, though the agent was not on the register, this view was confirmed in Re Barnes and Civil Aviation Safety Authority (2015) 67 AAR 433 and Trades College Australia Pty Ltd v Australian Skills Quality Authority [2018] AATA 1703 (12 June 2018). As such, the applicants submit if a stay were granted, the pharmacy would be treated as an “approved premises” up until the Tribunal’s decision.
In respect of the respondent’s submissions regarding the Tribunal’s jurisdiction to grant such a stay, the applicants submit that the respondent imposes a strict interpretation of s 41(2) of the AAT Act, and disregards the Location Rules. The applicants submit that s 41(2) of the AAT Act has a broad interpretation, and the Location Rules do apply.
RESPONDENT’S SUBMISSIONS
The respondent contends that the applicants financial position is simply as a result of a commercial risk which the applicants elected to take by commencing trade prior to obtaining approval under s 90 of the Act.
The respondent submits that a decision in favour of a stay would be adverse to the respondent in carrying out its functions. The respondent submits that there is nothing to preclude the respondent from considering other applications, whilst the applicants’ review is on foot. The respondent relies on Yu v Australian Community Pharmacy Authority [2013] FCA 713 at [8]-[9] (“Yu”), where Pagone J refused an injunction as there was no statutory obligation to give the applicant priority. Likewise, the respondent submits that the applicants should not be awarded “approved premises” status for the review period. The applicants contend that this case is not relevant, as the effect of s 41(2) of the AAT Act is a practical one, to secure the effectiveness of the hearing. Further, in Yu the applicant had not received the recommendation from the authority, the authority had recommended against approval, which is why the applicant sought an injunction. The respondent has not received any other applications for approval under s 90 of the Act; therefore the applicants are not exposed to any risk at this time.
The respondent further contends that the substantive application will not necessarily be rendered nugatory if a stay is not granted. The Tribunal may still set aside the decision of the respondent, and may exercise its discretion to grant an approval under s 90 of the Act.
The respondent contends that it is not in the public interest to grant the stay request, as the purpose of the provisions are to regulate pharmacies for the benefit of the public, as discussed in Terry White Chemists Australia Fair v Secretary to the Department of Health and Aging (2009) 178 FCR 161. Further, the purpose of the Location Rules is to provide well-distributed and accessible pharmacies. The applicants oppose this submission. The Tribunal accepts that the Act is designed to preserve the public interest by regulating pharmacy applications.
The respondent submits that there is a lack of utility in ordering a stay, as the pharmacy was not and is not an “approved premises” therefore there is no status to preserve under the Act. The respondent submits that r 6(1) is merely definitional, and confers no legal status.
The respondent forms the view that the discretion to grant a stay pursuant to s 41(2) of the AAT Act requires the Tribunal to form an opinion that it is desirable to do so and then consider whether granting a stay would be appropriate to secure the effectiveness of the hearing. To determine whether a stay is appropriate the Tribunal must have regard to the terms of the enactment under review, as per Civil Aviation Safety Authority v Hotop (2005) 145 FCR 232 and Trades College Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 1703. In this circumstance, approval is sought pursuant to s 90 of the Act.
The respondent submits that there is no utility to grant a stay to the applicants, as a stay would put the applicants into the same position as they are in currently. The respondent contends that this application is very different from one where there is a cancellation of an existing approval. Here, the applicants have never had the relevant legal status. The respondent submits that the Location Rules do not confer a legal entitlement to an “approved premises”. The respondent contends that the statutory provisions for approval do not provide a protective mechanism as claimed by the applicants. The requirements are simply a matter to consider by the authority, not a protective mechanism. As such, the respondent submits that it would not be appropriate for a stay to be granted.
At the hearing, the respondent stated that it will advise the applicants if another application is lodged.
CONCLUSION
The applicants’ certainly took a commercial risk when the applicants made investments in the pharmacy before a decision was made by the respondent to approve tshe applicants under s 90 of the Act. Prior to the making of the decision on 21 August 2019, the respondent had information indicating that there was not the equivalent of one full time practicing medical practitioner at the Centre. The applicants opened the pharmacy after having notice of the concerns of the respondent that there was not a full-time practising medical practitioner at the Centre. While the applicants are certainly at liberty to apply to conduct a pharmacy without having approval under s 90 of the Act, they cannot claim any subsidies which may be available under the Pharmaceutical Benefit Scheme. If a stay were granted the applicants would still not have any right to claim such subsidies.
In Australian Community Pharmacy Authority v Eaves & Ors [1997] FCA 100, Kiefel J. (as Her Honour then was) remarked:
“The functions of the ACPA, pursuant to s 99K, are to consider applications including those under s 90 and to make recommendations whether the applicant should be approved in respect of particular premises. In doing so the ACPA must comply with the relevant rules determined by the Minister under s 99L (s 99K (2))”.
The relevant rules in force are the Location Rules, which under s 5 of those rules define the expression “all relevant times” to be the day on which an application is made and the day on which the application is considered by the Authority. As Kiefel J. explained the rules bind the Authority pursuant to s 99L of the Act. The applicants have taken exception to the respondent having regard to the Location Rules. While there is no requirement in the Act that the respondent in considering an application under s 90 of the Act is bound by those rules, the respondent is certainly not restricted from having regard to the criteria in the Location Rules, this approach will ensure consistency of decision-making.
The Applicants made submissions to the delegate of the respondent that in making a decision under s 90 of the Act the delegate was constrained by the considerations in that provision. I do not in these interlocutory proceedings accept the submissions of the applicants that the delegate is so constrained, this is because the words “Subject to this section” in s90 (1) of the Act do not in any respect restrict the delegate in only focusing attention to those considerations in s 90 of the Act.
The Tribunal has decided to refuse the applicants’ request pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) for an order staying or otherwise affecting the operation or implementation of the respondent’s decision dated 21 August 2019. The typical case where the Tribunal would readily grant a stay is where there is the non-renewal of a license. Here the applicants never had any approval under s 90 of the Act.
I certainly accept the assurance of the applicants that they will act promptly in prosecuting this application in the Tribunal. This is understandable having regard to their considerable investment. I am not satisfied that at this stage a stay is necessary to secure the effectiveness of the hearing and the determination of the application for review. The Tribunal has taken steps to expedite the hearing in this matter in order to protect the applicants interest by arranging an early hearing date next week before a Deputy President of this Tribunal.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
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Associate
Dated: 12 December 2019
Dates of hearing:
23 September 2019
Final Submissions:
30 September 2019
Solicitors for the Applicant:
Solicitors for the Respondent:
Mr A Lambros
Bennett & Philip Lawyers
Ms M Jackson
Australian Government Solicitor
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