Clare v Australian Community Pharmacy Authority [2015] FCA 653

Clare v Australian Community Pharmacy Authority [2015] FCA 653

Item 312(b)(ii) did not apply to Ms Clare's item 124 short distance relocation application. Read in light of s 10(a)(iii), the structure of the 2011 Rules and the purpose of maintaining stability in the PBS pharmacy network, item 312(b) imposes additional limitations on relocations within two years of approval rather than expanding relocation options. For an item 124 application made within that two-year period, Ms Clare had to satisfy one of item 312(b)(iii) to (v), and she could not rely on item 312(b)(ii). The appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
30 June 2015
Procedural Posture
Appeal From Decision of the Administrative Appeals Tribunal / Judgment on Appeal
Outcome
Appeal dismissed.
Legal Topics
['pharmaceutical Benefits Scheme' 'approval to Relocate Pharmacy' 'national Health (australian Community Pharmacy Authority Rules) Determination 2011' 'meaning of "same Town"' 'statutory Construction' 'administrative Appeals Tribunal Review']
['health Law' 'administrative Law'] ['pharmaceutical Benefits Scheme' 'approval to Relocate Pharmacy' 'national Health (australian Community Pharmacy Authority Rules) Determination 2011' 'meaning of "same Town"' 'statutory Construction' 'administrative Appeals Tribunal Review']

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Procedural Posture

Appeal From Decision of the Administrative Appeals Tribunal / Judgment on Appeal

Legal Issues

  1. 1 ['Whether the existing pharmacy premises and the proposed premises were in the "same town" for the purposes of item 312(b)(ii) of the 2011 Rules.' "Whether item 312(b)(ii) of Part 1 of Schedule 3 to the 2011 Rules applied to Ms Clare's item 124 short distance relocation application." "Whether the Tribunal could determine the item 312(b)(ii) construction issue despite the Authority's earlier concession and despite the issue not arising on the parties' Statements of Facts, Issues and Contentions."]

Ratio Decidendi

Item 312(b)(ii) did not apply to Ms Clare's item 124 short distance relocation application. Read in light of s 10(a)(iii), the structure of the 2011 Rules and the purpose of maintaining stability in the PBS pharmacy network, item 312(b) imposes additional limitations on relocations within two years of approval rather than expanding relocation options. For an item 124 application made within that two-year period, Ms Clare had to satisfy one of item 312(b)(iii) to (v), and she could not rely on item 312(b)(ii). The appeal was therefore dismissed.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' "The appellant pay the respondent's costs of and incidental to the appeal."]