Kastrinakis v Australian Community Pharmacy Authority [2013] FCA 995

Kastrinakis v Australian Community Pharmacy Authority [2013] FCA 995

The minimum distance requirement in Item 130 of Part 2 to Sch 1 of the Rules was an objectively determinable jurisdictional fact because it required a straight line measurement between defined reference points and r 11 made compliance essential. The undisputed actual distance from the proposed premises at 30 Howitt Avenue to the nearest approved premises was less than 1.5 km, so the requirement was not met and both the Authority's recommendation and the Secretary's approval were affected by jurisdictional error. In any event, the Google Earth map measured from 66 Howitt Avenue, not the proposed premises, and was no evidence of the required r 8 measurement; reliance on it also meant an...

Jurisdiction
Australia
Judgment Date
02 October 2013
Procedural Posture
Judicial Review of Decisions Concerning Approval to Supply Pharmaceutical Benefits Under the National Health Act 1953 (cth) / Final Judgment and Orders
Outcome
Application granted; the Authority's recommendation and the Secretary's approval were set aside and the application for approval was referred back for consideration according to law, with no order as to costs.
Legal Topics
['judicial Review' 'jurisdictional Fact' 'no Evidence Ground' 'irrelevant and Relevant Considerations' 'standing' 'pharmacy Approval to Supply Pharmaceutical Benefits' 'national Health (australian Community Pharmacy Authority Rules) Determination 2011 (cth)']
['administrative Law' 'practice and Procedure'] ['judicial Review' 'jurisdictional Fact' 'no Evidence Ground' 'irrelevant and Relevant Considerations' 'standing' 'pharmacy Approval to Supply Pharmaceutical Benefits' 'national Health (australian Community Pharmacy Authority Rules) Determination 2011 (cth)']

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Procedural Posture

Judicial Review of Decisions Concerning Approval to Supply Pharmaceutical Benefits Under the National Health Act 1953 (cth) / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the requirement that proposed pharmacy premises be at least 1.5 km in a straight line from the nearest approved premises was a jurisdictional fact.' "Whether there was no evidence to justify the Authority's recommendation and the Secretary's approval because the Google Earth map measured from the wrong location." 'Whether the Authority and the Secretary took into account an irrelevant consideration and failed to take into account a relevant consideration.' 'Whether the Authority and Secretary failed to follow procedures required by law by reference to a departmental handbook.' 'Whether the third to seventh applicants had standing as persons aggrieved.']

Ratio Decidendi

The minimum distance requirement in Item 130 of Part 2 to Sch 1 of the Rules was an objectively determinable jurisdictional fact because it required a straight line measurement between defined reference points and r 11 made compliance essential. The undisputed actual distance from the proposed premises at 30 Howitt Avenue to the nearest approved premises was less than 1.5 km, so the requirement was not met and both the Authority's recommendation and the Secretary's approval were affected by jurisdictional error. In any event, the Google Earth map measured from 66 Howitt Avenue, not the proposed premises, and was no evidence of the required r 8 measurement; reliance on it also meant an...

Court Disposition

Application granted; the Authority's recommendation and the Secretary's approval were set aside and the application for approval was referred back for consideration according to law, with no order as to costs.

Orders

  • ['The application is granted.' 'The decision of the first respondent to recommend that the second respondent grant the third and fourth respondents approval under s 90(1) of the National Health Act 1953 (Cth) to supply pharmaceutical benefits at Shop 8, Eastwood Village Shopping Centre, Bairnsdale in the State of...