Commonwealth of Australia v Horsfall [2010] FCA 443

Commonwealth of Australia v Horsfall [2010] FCA 443

The AAT was required to determine whether the proposed premises satisfied the 10 km rule in rule 114(b) of the Determination as at the date of its own decision, not at the date of application or the original Authority decision. Because, at the time of the Tribunal’s decision, the Authority had recommended another pharmacy (the Carter application) for approval within 10 km, the Horsfall application could not satisfy rule 114(b) and could not be recommended for approval. The AAT erred in law by failing to consider the supervening event and erred in its construction of rule 114. The Tribunal also had no discretion to disregard relevant post-decision events, no power to order costs, and...

Parties
Applicant: Commonwealth of Australia; First Respondent: Simon Horsfall; Second Respondent: Kathleen Horsfall; Third Respondent: Pamela Carter; Fourth Respondent: Secretary of the Department of Health and Ageing
Jurisdiction
Australia
Judgment Date
07 May 2010
Procedural Posture
Administrative Law Appeal / On Appeal From the Administrative Appeals Tribunal
Outcome
Appeal allowed
Legal Topics
Merits Review, Statutory Interpretation, Pharmaceutical Regulation, Tribunal Procedure, Temporal Facts in Administrative Review
Administrative Law Health Law Merits Review Statutory Interpretation Pharmaceutical Regulation Tribunal Procedure Temporal Facts in Administrative Review

Case Brief

Summary, issues, holding and outcome

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Parties

Commonwealth of Australia

Applicant

Simon Horsfall

First Respondent

Kathleen Horsfall

Second Respondent

Pamela Carter

Third Respondent

Secretary of the Department of Health and Ageing

Fourth Respondent

Procedural Posture

Administrative Law Appeal / On Appeal From the Administrative Appeals Tribunal

Legal Issues

  1. 1 Whether the AAT should assess criteria at the time of its own decision or at the time of the original decision by the Authority under the National Health Act and Determination
  2. 2 Whether the AAT misinterpreted rule 114(b) of the Determination
  3. 3 Whether the AAT erred in disregarding relevant changes in circumstances occurring after the Authority’s original decision, notably the recommendation for approval of another nearby pharmacy

Ratio Decidendi

The AAT was required to determine whether the proposed premises satisfied the 10 km rule in rule 114(b) of the Determination as at the date of its own decision, not at the date of application or the original Authority decision. Because, at the time of the Tribunal’s decision, the Authority had recommended another pharmacy (the Carter application) for approval within 10 km, the Horsfall application could not satisfy rule 114(b) and could not be recommended for approval. The AAT erred in law by failing to consider the supervening event and erred in its construction of rule 114. The Tribunal also had no discretion to disregard relevant post-decision events, no power to order costs, and...

Court Disposition

Appeal allowed

Orders

  • The appeal is allowed.
  • The decision made by the Administrative Appeals Tribunal on 22 October 2009 in proceeding 2008/4437 is set aside.