Wong v Australian Community Pharmacy Authority

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FEDERAL COURT OF AUSTRALIA

Wong v Australian Community Pharmacy Authority [2011] FCA 52

Citation: Wong v Australian Community Pharmacy Authority [2011] FCA 52
Parties: SHUI SU WONG v AUSTRALIAN COMMUNITY PHARMACY AUTHORITY, SECRETARY OF THE DEPARTMENT OF HEALTH AND AGEING and ROBERT PEARSON
File number: WAD 129 of 2010
Judge: SIOPIS J
Date of judgment: 7 February 2011
Catchwords: ADMINISTRATIVE LAW – whether pharmacist whose economic interest would be affected by the recommendation of the Australian Community Pharmacy Authority that another pharmacist be approved to supply pharmaceutical benefits, is entitled to be accorded procedural fairness in relation to the decision to make the recommendation - whether the Authority failed to take into account a relevant consideration – whether the decision of the Authority to make the recommendation was unreasonable.
Legislation: National Health Act 1953 (Cth) s 90
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13
Judiciary Act 1903 (Cth) s 39B
National Health (Australian Community Pharmacy Authority Rules) Determination 2006 Sch 1 Pt 1 rule 107
Cases cited: Martin v Pharmacy Restructuring Authority (1994) 34 ALD 534
Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589
Loveridge v Pharmacy Restructuring Authority (1995) 39 ALD 103
The Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 46 ALD 310
Wood v Australian Community Pharmacy Authority [2001] FCA 1592
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Date of hearing: 15 September 2010
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 100
Counsel for the Applicant: Mr SA Glacken SC and Ms RJ Lee
Solicitor for the Applicant: Gadens Lawyers
Counsel for the First and Second Respondents:

Mr PR Macliver
Solicitor for the First and Second Respondents:

Australian Government Solicitor
Counsel for the Third Respondent:

Mr GS Clarke SC and Mr D Feinauer
Solicitor for the Third Respondent:

Feinauer

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 129 of 2010
BETWEEN:

SHUI SU WONG
Applicant
AND:

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
First Respondent

SECRETARY OF THE DEPARTMENT OF HEALTH AND AGEING
Second Respondent

ROBERT PEARSON
Third Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

7 FEBRUARY 2011

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The applicant’s application dated 20 May 2010, is dismissed.

2.The applicant is to pay the respondents’ costs.

3.The third respondent has liberty to apply in respect of costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 129 of 2010
BETWEEN:

SHUI SU WONG
Applicant
AND:

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
First Respondent

SECRETARY OF THE DEPARTMENT OF HEALTH AND AGEING
Second Respondent

ROBERT PEARSON
Third Respondent

JUDGE:

SIOPIS J

DATE:

7 FEBRUARY 2011

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. In 2005, Mr Wong, the applicant in this case, obtained approval from the Secretary of the Department of Health and Ageing,…

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Details
Case
[2011] FCA 52
Decision Date

CaseChat Overview and Summary

The case of Wong v Australian Community Pharmacy Authority involves a challenge by Mr. Wong to the decision of the Authority to recommend the approval of Mr. Pearson's application for approval to supply pharmaceutical benefits at particular premises. Mr. Wong argues that the Authority failed to accord procedural fairness and took into account irrelevant considerations in making its recommendation. The Authority, in turn, contends that it acted lawfully and that Mr. Wong is not entitled to procedural fairness.

The legal issues that the court had to decide in this case were whether Mr. Wong, whose economic interest would be affected by the Authority's recommendation, was entitled to procedural fairness, whether the Authority failed to take into account a relevant consideration, and whether the Authority's decision was unreasonable. The court held that Mr. Wong was not entitled to procedural fairness because the statutory scheme did not require it. Furthermore, the court found that the Authority had not failed to take into account a relevant consideration because there was no requirement in the statute or the Pharmacy Rules that the Authority was bound to have regard to whether persons located to the east of the Forrest Highway would be deterred by the highway from utilizing the services in the Mandurah CBD in determining the population of the catchment area. The court also held that the Authority's decision was not unreasonable.

The court's reasoning was that the statutory scheme did not require procedural fairness, and the matters to which the Authority was bound to have regard were set out in rule 107 of the Pharmacy Rules. The court found that the Authority had taken into account the relevant considerations and that the decision was not unreasonable. The court also held that even if the Authority was bound to take into account the question of whether the Forrest Highway would deter persons to the east of the highway, in determining the population in the catchment area, the Authority did have regard to this consideration.

The final orders of the court were that the applicant's application was dismissed, and the applicant was to pay the respondents' costs. The third respondent had liberty to apply in respect of costs.

Orders

Orders of the court

1. The applicant’s application dated 20 May 2010, is dismissed.

2. The applicant is to pay the respondents’ costs.

3. The third respondent has liberty to apply in respect of costs.

Note:

Background

Background to the litigation

In this proceeding, Mr Wong challenges the lawfulness of both the decision of the Authority to recommend the approval of Mr Pearson’s application, and the approval decision of the delegate of the Secretary.BACKGROUND Section 90(1) of the National Health Act relevantly provides:90Approved pharmacists(1)Subject to this section, the Secretary may, upon application by a pharmacist for approval to supply pharmaceutical benefits at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at those premises. Section 90(3A) provides that an application made by a pharmacist under that section, must be referred to the Authority. Section 90(3B) provides that an approval may be granted by the Secretary only if the Authority has recommended the grant of the approval, but the Secretary may refuse to grant an approval even if the grant has been recommended by the Authority. Section 99K of the National Health Act describes the functions of the Authority. It states:99K Functions(1)The functions of the Authority are:(a)to consider applications under section 90; and(b)to make, in respect of an application under section 90:(i)a recommendation whether or not the applicant should be approved under that section in respect of particular premises; and(ii)if an approval is recommended – recommendations as to the conditions (if any) to which the approval should be subject; and(2)In making a recommendation under subsection (1), the Authority must comply with the relevant rules determined by the Minister under section 99L.(3)All recommendations of the Authority under subsection (1) are to be made to the Secretary. The prescribed requirements referred to in s 99K(2) which are relevant to this proceeding, are in rule 107 of Pt 1 of Sch 1 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 (Pharmacy Rules). These requirements apply in relation to the relocation of a pharmacy to a rural locality. The Pharmacy Rules relevantly provide as follows:107 Relocation to 1. The proposed premises are in a rural locality. rural locality(additional 2. The proposed premises are at least 200 m, in a straight Pharmacy) line, from the nearest approved premises.3. The Authority is satisfied that:(a) the resident population of the catchment area for the proposed premises is, for most of the year, at least 8 000; and(b) the number of prescribing medical practitioners practising in the catchment area for the proposed premises is equivalent to at least 4 full-time prescribing medical practitioners; and(c) the catchment area for the proposed premises contains only 1 approved premises; and(d) … There is no definition of the term “catchment area” in the Pharmacy Rules. However, the Authority has published the Pharmacy Location Rules – Applicant’s Handbook, March 2009. Item 4.1 of the handbook provides:4.1Defining the catchment areaThe catchment area of a pharmacy is considered to be one in which a significant number of people from within an area will naturally and reasonably gravitate or flow to the proposed pharmacy premises.In considering a catchment area, the [Authority] will take into account matters such as traffic flows, proximity to other services and attractions, geographical features, any natural barriers and distance to the proposed premises.It should be noted that in areas where there is one or more existing pharmacies, the catchment area of a proposed pharmacy is likely to overlap, to some degree, with those of the existing pharmacies.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Greg Rowe & Associates report stated that the catchment area for the proposed pharmacy premises comprised a population of 5,630 persons, less than the 8,000 persons required by the Pharmacy Rules. The report attached a “catchment plan” which reflected a catchment area which comprised a total of 19 Census Collection Districts (the CDs), being districts used in the Australian Bureau of Statistics, 2006 Census of Population and Housing. The report stated:Summary ConclusionTo conclude the catchment area of the proposed additional Pharmacy is affected by a number of factors principally the Forrest Highway which creates an obstacle or physical limitation to the catchment area identified.Significant attractor factors also require consideration in the determination of a Catchment Area. The Mandurah and Rockingham Central Business District is likely to attract persons from CD’s west of the Forrest Highway due to the services offered at these Centres, including Pharmacies. In addition, the localities of Mundijong, Jarrahdale and Serpentine, are unlikely to travel south to Pinjarra given the existing pharmacy located to the North in Byford and the various pharmacies and numerous additional services located to the west in the Rockingham and Kwinana CBD’s and surrounds. The report also stated as follows:In addition, a large proportion of CD 5061808 is dissected by the Forrest Highway and accordingly the proportion of the 242 persons within this CD located to the west of the Forrest Highway, may not utilise the proposed pharmacy and instead travel north to the South Yunderup Pharmacy.It is further noted that a number of the population located within the CD’s on the western edge of the catchment area, east of the Highway (CD’s 5060110, 5061802 and 5061801) may not be deterred by the limitation that is the Forrest Highway and may see the benefits of utilising the additional services provided within the Mandurah CBD and immediate surrounds as a major attractor. This will result in a further reduction in the population within the catchment area. The Forrest Highway, referred to in the report, is a recently built highway which connects Perth to Bunbury and is located to the east of Mandurah and to the west of Pinjarra. On 26 February 2010, the Authority decided not to recommend approval of the application to supply pharmaceutical benefits from 53 George Street. By a letter dated 5 March 2010, the Authority notified the George Street applicant that it had recommended that the application not be approved because it was not satisfied that the resident population of the catchment area for the proposed premises was, for most of the year, at least 8,000 persons. The Authority went onto advise the applicant:The Authority determined that the services and attractions at Armadale and Mandurah were superior to those nearby to the proposed premises. The Authority found that due to the road networks and the services and attractions at Armadale and Mandurah and their accessibility, the catchment area for the proposed premises would comprise…a resident population of 6,605.

Ratio Decidendi

Legal Principle Established

Mr Wong also referred to cases where it has been held that objectors under different statutory schemes, had been entitled to be accorded procedural fairness in relation to the decision-making process. However, these cases provided no assistance, because as was recognised by the Full Court in Martin, each statutory scheme must be assessed by reference to its own terms.FAILURE TO TAKE INTO ACCOUNT A RELEVANT CONSIDERATION Mr Wong contended that in determining the catchment area of the proposed premises, the Authority failed to take into account the opinion expressed in the Rowe report that the number of persons in the catchment area should be reduced because a number of the population located on the western edge of the catchment area, east of the Forrest Highway, may not be deterred by the limitation that is the Forrest Highway, and may see benefits in utilising additional services provided within the Mandurah CBD as a major attractor. Mr Wong contended that the Authority had, therefore, failed to take into account a relevant consideration, and the approval recommendation was, accordingly, liable to be set aside. A decision-maker will fail to take into account a relevant consideration when he or she fails to take into account a consideration which the decision-maker is bound to take into account. Whether the decision-maker is bound to take such a consideration into account will depend upon whether the statute pursuant to which the decision-maker is acting, expressly or impliedly, requires that the consideration be taken into account. In this case, the matters to which the Authority was bound to have regard are set out in rule 107 of the Pharmacy Rules. Relevantly, rule 107(3)(a) required the Authority to be satisfied that the resident population of the catchment area for the proposed premises was, for most of the year, at least 8,000 persons. It is apparent from its reasons for decision, that the Authority did have regard to that consideration and concluded that the resident population of the catchment area for the proposed premises, comprised 9,194 persons. There is no definition of “catchment area” in the Pharmacy Rules or in the statute. Nor does the statute or the Pharmacy Rules direct that the Authority is to take into account specific matters in reaching satisfaction in respect of the requirement in rule 107(3)(a). It follows that there is no requirement that the Authority was bound to have regard to whether persons located to the east of the Forrest Highway were likely to be deterred by the highway from utilising the services in the Mandurah CBD in determining the population of the catchment area. In any event, even if the Authority was bound to take into account the question of whether the Forrest Highway would, or would not, deter persons to the east of the highway, from availing themselves of the services in the Mandurah CBD, in determining the population in the catchment area, in my view, the Authority did have regard to this consideration.