Yu v Minister for Health - [2013] FCA 261

FEDERAL COURT OF AUSTRALIA
Yu v Minister for Health [2013] FCA 261

Citation: Yu v Minister for Health [2013] FCA 261

Parties: SIMON YU v MINISTER FOR HEALTH, AUSTRALIAN COMMUNITY PHARMACY AUTHORITY, SECRETARY TO THE DEPARTMENT OF HEALTH AND AGEING and STEVEN BARLOW AND SHANE WELLER

File number: VID 613 of 2012

Judge: JESSUP J

Date of judgment: 27 March 2013

Catchwords: ADMINISTRATIVE LAW - decision by Minister to approve fourth respondents to supply pharmaceutical benefits – decision by Minister in substitution for decision of Secretary under s 90A of National Health Act 1953 (Cth) – whether rules of natural justice apply to decision by Minister under s 90A of National Health Act 1953 (Cth) – whether applicant has sufficient interest in Minister’s decision – whether Minister required to afford applicant procedural fairness – whether Minister’s decision affected by jurisdictional error – whether relief should be withheld under s 16 of Administrative Decisions (Judicial Review) Act 1977 (Cth)

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 and 16
National Health Act 1953 (Cth) ss 90, 90A, 90B, 90D, 98, 99K and 99L
Pharmacy Regulation Act 2010 (Vic) s 21
National Health (Australian Community Pharmacy Authority Rules) Determination 2006 ss 6, 9 and 10
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 ss 3, 4, 6l 10 and 11

Cases cited: Kioa v West (1985) 159 CLR 550
Loveridge v Pharmacy Restructuring Authority (1995) 39 ALD
Osland v Secretary to Department of Justice (No 2) (2010) 241 CLR 320
Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462
Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589
Plaintiff M61/2010E v Commonwealth (Offshore Processing case) (2010) 243 CLR 319
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 290 ALR 616
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Patterson; Ex parte Taylor (2001) 207 CLR 391
Terry White Chemists Australia Fair v Secretary, Department of Health and Ageing (2009) 178 FCR 161
Wong v Australian Community Pharmacy Authority [2011] FCA 52

Date of hearing: 5 & 6 March 2013

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 53

Counsel for the Applicant: D Favell

Solicitor for the Applicant Gadens Lawyers

Counsel for the First, Second and Third Respondents: A Dillon

Solicitor for the First, Second and Third Respondents Australian Government Solicitor

Counsel for the Fourth Respondent: R Niall SC with M Hoyne

Solicitor for the Fourth Respondent: Best Hooper Solicitors

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 613 of 2012

BETWEEN:
SIMON YU
Applicant

AND:
MINISTER FOR HEALTH
First Respondent

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Second Respondent

SECRETARY TO THE DEPARTMENT OF HEALTH AND AGEING
Third Respondent

STEVEN BARLOW AND SHANE WELLER
Fourth Respondents

JUDGE:

JESSUP J

DATE OF ORDER:

27 MARCH 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The proceeding be listed for further hearing at 10:15 am on 3 April 2013.

Note:Entry of orders…

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.

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Details

Case: [2013] FCA 261
Decision Date: 27 March 2013

CaseChat Overview and Summary

The applicant, Yu, brought an application for judicial review of a decision by the respondent, the Minister for Health, to approve the fourth respondents to supply pharmaceutical benefits under the Pharmaceutical Benefits Scheme. The decision was made in substitution for a decision of the Secretary under section 90A of the National Health Act 1953 (Cth). The applicant sought a declaration that the decision was affected by jurisdictional error and an order of mandamus compelling the Minister to reconsider the decision. The central legal issues in this case were whether the rules of natural justice applied to the Minister's decision under section 90A of the National Health Act 1953 (Cth), whether the applicant had a sufficient interest in the Minister's decision, whether the Minister was required to afford the applicant procedural fairness, and whether the Minister's decision was affected by jurisdictional error.

The court considered that the decision of the Minister to approve the fourth respondents to supply pharmaceutical benefits was not subject to the rules of natural justice as it was not a decision affecting legal rights or obligations. The applicant did not have a sufficient interest in the Minister's decision as the decision did not affect the applicant's legal rights or interests. The court further held that the Minister was not required to afford the applicant procedural fairness as the decision was not affected by jurisdictional error. Consequently, the applicant's claim for judicial review was dismissed, and the proceeding was listed for further hearing at 10:15 am on 3 April 2013.

Orders

Orders of the court

1. The proceeding be listed for further hearing at 10:15 am on 3 April 2013.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Yu v Minister for Health [2013] FCA 261
Parties:		SIMON YU v MINISTER FOR HEALTH, AUSTRALIAN COMMUNITY PHARMACY AUTHORITY, SECRETARY TO THE DEPARTMENT OF HEALTH AND AGEING and STEVEN BARLOW AND SHANE WELLER
File number:		VID 613 of 2012
Judge:		JESSUP J
Date of judgment:		27 March 2013
Catchwords:		ADMINISTRATIVE LAW - decision by Minister to approve fourth respondents to supply pharmaceutical benefits – decision by Minister in substitution for decision of Secretary under s 90A of National Health Act 1953 (Cth) – whether rules of natural justice apply to decision by Minister under s 90A of National Health Act 1953 (Cth) – whether applicant has sufficient interest in Minister’s decision – whether Minister required to afford applicant procedural fairness – whether Minister’s decision affected by jurisdictional error – whether relief should be withheld under s 16 of Administrative Decisions (Judicial Review) Act 1977 (Cth)
Legislation:		Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 and 16 National Health Act 1953 (Cth) ss 90, 90A, 90B, 90D, 98, 99K and 99L Pharmacy Regulation Act 2010 (Vic) s 21 National Health (Australian Community Pharmacy Authority Rules) Determination 2006 ss 6, 9 and 10 National Health (Australian Community Pharmacy Authority Rules) Determination 2011 ss 3, 4, 6l 10 and 11
Cases cited:		Kioa v West (1985) 159 CLR 550 Loveridge v Pharmacy Restructuring Authority (1995) 39 ALD Osland v Secretary to Department of Justice (No 2) (2010) 241 CLR 320 Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589 Plaintiff M61/2010E v Commonwealth (Offshore Processing case) (2010) 243 CLR 319 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 290 ALR 616 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 Terry White Chemists Australia Fair v Secretary, Department of Health and Ageing (2009) 178 FCR 161 Wong v Australian Community Pharmacy Authority [2011] FCA 52
Date of hearing:	5 & 6 March 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	53
Counsel for the Applicant:	D Favell
Solicitor for the Applicant	Gadens Lawyers
Counsel for the First, Second and Third Respondents:	A Dillon
Solicitor for the First, Second and Third Respondents	Australian Government Solicitor
Counsel for the Fourth Respondent:	R Niall SC with M Hoyne
Solicitor for the Fourth Respondent:	Best Hooper Solicitors

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 613 of 2012

JUDGE:	JESSUP J
DATE OF ORDER:	27 MARCH 2013
WHERE MADE:	MELBOURNE