Wong and Secretary, Department of Health

The Administrative Appeals Tribunal considered an application by the applicants for a stay of the respondent's decision dated 21 August 2019, which refused to grant them approval under section 90 of the relevant Act to operate a pharmacy under the Pharmaceutical Benefits Scheme. The applicants had invested in the pharmacy prior to receiving a decision on their application.

The Tribunal was required to determine whether to grant a stay of the respondent's decision. This involved considering whether the applicants had a right to claim subsidies under the Pharmaceutical Benefits Scheme and whether the respondent was restricted to considering only the criteria within section 90 of the Act when assessing an application, or if it could have regard to other relevant rules, such as the Location Rules, to ensure consistency in decision-making.

The Tribunal reasoned that the applicants had accepted a commercial risk by investing before their application was approved. It noted that even if a stay were granted, the applicants would still not have a right to claim subsidies under the Pharmaceutical Benefits Scheme as they had never obtained approval under section 90. The Tribunal also found that the respondent was not restricted to only the considerations within section 90, and was entitled to have regard to the Location Rules for consistency. The Tribunal concluded that the applicants' submission that the delegate was so constrained was not accepted, as the words "Subject to this section" in section 90(1) did not limit the delegate's considerations.

The Tribunal refused the applicants' request for an order staying or otherwise affecting the operation or implementation of the respondent's decision. The Tribunal distinguished this case from typical stay applications, such as the non-renewal of a license, noting that the applicants had never held any approval under section 90 of the Act.