Australian Community Pharmacy Authority v Eaves, David William Low, Lawrence v Lapsley, Helen & Ors [1997] FCA 1000

Australian Community Pharmacy Authority v Eaves, David William Low, Lawrence v Lapsley, Helen & Ors [1997] FCA 1000

The Tribunal exceeded its powers by providing that it could itself allow a further period before the recommendation lapsed, because rule 9 gave that function to the ACPA and s 43(1) of the Administrative Appeal Tribunal Act confined the Tribunal to exercising the decision-maker's powers in relation to the decision under review. The Tribunal did not err in treating Mr Eaves' lease and sublease as satisfying the legal right to occupy requirement, because the Minister's rules required a right to occupy rather than a present lawful right to use the premises under town planning law; any inability lawfully to carry on business was a matter for the Secretary under s 90. Mr Low was not entitled...

Jurisdiction
Australia
Judgment Date
24 September 1997
Procedural Posture
Appeal From a General Administrative Decision of the Administrative Appeals Tribunal; Application for Judicial Review and Extensions of Time / Federal Court Judgment on Appeal, Notice of Motion, Application for Extension of Time to Appeal, and Application to Extend Time for Judicial Review
Outcome
The ACPA appeal was allowed; the Tribunal's paragraph (b)(ii) was set aside and substituted. Mr Low was granted an extension of time to appeal, but his appeal was dismissed with costs. Mr Low's notice of motion and application to extend time for judicial review were dismissed or refused with costs.
Legal Topics
['national Health Act Approval for Relocation of Pharmacy' 'australian Community Pharmacy Authority Recommendations' 'administrative Appeals Tribunal Powers' 'legal Right to Occupy Premises' 'town Planning Approvals' 'extension of Time' 'cross Appeal by Respondent' 'judicial Review of Deferred Consideration']
['administrative Law' 'health Law' 'civil Procedure'] ['national Health Act Approval for Relocation of Pharmacy' 'australian Community Pharmacy Authority Recommendations' 'administrative Appeals Tribunal Powers' 'legal Right to Occupy Premises' 'town Planning Approvals' 'extension of Time' 'cross Appeal by Respondent' 'judicial Review of Deferred Consideration']

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Procedural Posture

Appeal From a General Administrative Decision of the Administrative Appeals Tribunal; Application for Judicial Review and Extensions of Time / Federal Court Judgment on Appeal, Notice of Motion, Application for Extension of Time to Appeal, and Application to Extend Time for Judicial Review

Legal Issues

  1. 1 ['Whether the Administrative Appeals Tribunal had power to provide that it, rather than the Australian Community Pharmacy Authority, could allow a further period before a recommendation for approval lapsed.' "Whether a pharmacist's legal right to occupy premises under the Minister's determination required lawful ability to use the premises under the relevant town planning scheme." 'Whether Lawrence Low was entitled to bring a cross-appeal as a respondent to the ACPA appeal.' "Whether Lawrence Low should be granted an extension of time to appeal the Tribunal's decision." "Whether time should be extended for Lawrence Low to seek judicial review of the ACPA's decision to defer consideration of his application while Mr Eaves' application and review processes were pending."]

Ratio Decidendi

The Tribunal exceeded its powers by providing that it could itself allow a further period before the recommendation lapsed, because rule 9 gave that function to the ACPA and s 43(1) of the Administrative Appeal Tribunal Act confined the Tribunal to exercising the decision-maker's powers in relation to the decision under review. The Tribunal did not err in treating Mr Eaves' lease and sublease as satisfying the legal right to occupy requirement, because the Minister's rules required a right to occupy rather than a present lawful right to use the premises under town planning law; any inability lawfully to carry on business was a matter for the Secretary under s 90. Mr Low was not entitled...

Court Disposition

The ACPA appeal was allowed; the Tribunal's paragraph (b)(ii) was set aside and substituted. Mr Low was granted an extension of time to appeal, but his appeal was dismissed with costs. Mr Low's notice of motion and application to extend time for judicial review were dismissed or refused with costs.

Orders

  • ['In QG 68 of 1997, the appeal be allowed.' 'Paragraph (b)(ii) of the decision be set aside and substitute: "(b)(ii)This recommendation for approval shall lapse if the applicant has not been granted approval within six months after the date of the Tribunal\'s decision or such further period as the Australian...