Hallgath v Australian Community Pharmacy Authority (No 2) [2011] FCA 1074

Hallgath v Australian Community Pharmacy Authority (No 2) [2011] FCA 1074

On the true construction of item 201(a) in Sch 2 of the Ministerial Determination, it is sufficient that the applicant has, at the date of application and at the date of recommendation decision, a present legal right to occupy the proposed premises even if actual occupancy begins later. The Authority had evidence of such right from the executed lease, and was therefore entitled to be satisfied that the requirement was met.

Parties
Applicant: Kenneth Hallgath; First Respondent: Australian Community Pharmacy Authority; Second Respondent: The Secretary of the Department of Health and Ageing; Third Respondent: CKK Services Pty Ltd ACN 151 255 060
Jurisdiction
Australia
Judgment Date
14 September 2011
Procedural Posture
Judicial Review / Final Judgment at First Instance
Outcome
Application dismissed
Legal Topics
Judicial Review – No Evidence Ground, Ministerial Determination Construction, Approval of Pharmacy Premises, Legal Right to Occupy Premises Under Lease
Administrative Law Statutory Interpretation Judicial Review – No Evidence Ground Ministerial Determination Construction Approval of Pharmacy Premises Legal Right to Occupy Premises Under Lease

Case Brief

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Parties

Kenneth Hallgath

Applicant

Australian Community Pharmacy Authority

First Respondent

The Secretary of the Department of Health and Ageing

Second Respondent

CKK Services Pty Ltd ACN 151 255 060

Third Respondent

Procedural Posture

Judicial Review / Final Judgment at First Instance

Legal Issues

  1. 1 Whether the Authority had evidence that CKK Services had a legal right to occupy the proposed premises at the relevant dates
  2. 2 Proper construction of item 201(a) in Sch 2 to the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 – does right to occupy require immediate occupancy or a present legal right regardless of when occupancy commences

Ratio Decidendi

On the true construction of item 201(a) in Sch 2 of the Ministerial Determination, it is sufficient that the applicant has, at the date of application and at the date of recommendation decision, a present legal right to occupy the proposed premises even if actual occupancy begins later. The Authority had evidence of such right from the executed lease, and was therefore entitled to be satisfied that the requirement was met.

Court Disposition

Application dismissed

Orders

  • The application as amended is dismissed.
  • The applicant is to pay the third respondent's costs of and incidental to the application to be taxed if not agreed.