Flaherty v Secretary, Department of Health and Ageing [2010] FCA 63

Flaherty v Secretary, Department of Health and Ageing [2010] FCA 63

The 20 April 2009 cancellation decision was made without procedural fairness because the delegate knew of a material change in circumstances, including the proposed sale of the pharmacy and the difficulties of communicating with Ms Hinde in custody, but did not invite comment or information about the true state of affairs before cancelling. That denial of procedural fairness was jurisdictional error, so the cancellation decision was of no legal effect and the delegate could consider the cancellation power on 26 May 2009 and decide not to cancel. The subsequent decisions not to cancel on 26 May 2009, 8 July 2009 and 17 August 2009 were not infected by failure to take into account legally...

Jurisdiction
Australia
Judgment Date
12 February 2010
Procedural Posture
Application Under Ss 5 and 6 of the Administrative Decisions (judicial Review) Act 1977 (cth) to Review Decisions Not to Cancel an Approved Pharmacist's Approval to Supply Pharmaceutical Benefits / Final Judgment
Outcome
Application dismissed, subject to a declaration that the 20 April 2009 cancellation decision was null and void; applicant ordered to pay the respondents' costs.
Legal Topics
['judicial Review' 'procedural Fairness' 'jurisdictional Error' 'cancellation of Approval to Supply Pharmaceutical Benefits' 'relevant and Irrelevant Considerations' 'acts Interpretation Act 1901 (cth) S 33(3)']
['administrative Law' 'health Law'] ['judicial Review' 'procedural Fairness' 'jurisdictional Error' 'cancellation of Approval to Supply Pharmaceutical Benefits' 'relevant and Irrelevant Considerations' 'acts Interpretation Act 1901 (cth) S 33(3)']

Case Brief

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Procedural Posture

Application Under Ss 5 and 6 of the Administrative Decisions (judicial Review) Act 1977 (cth) to Review Decisions Not to Cancel an Approved Pharmacist's Approval to Supply Pharmaceutical Benefits / Final Judgment

Legal Issues

  1. 1 ["Whether the delegate could on 26 May 2009 decide not to cancel Margaret Hinde's approval after a 20 April 2009 decision purporting to cancel it" 'Whether Margaret Hinde was denied procedural fairness before the 20 April 2009 cancellation decision' 'Whether the decisions of 26 May 2009, 8 July 2009 and 17 August 2009 involved failure to take into account relevant considerations, taking into account irrelevant considerations, improper purpose, failure to consider the merits, or legal unreasonableness' 'Whether s 33(3) of the Acts Interpretation Act 1901 (Cth) supported rescinding or revoking the cancellation decision']

Ratio Decidendi

The 20 April 2009 cancellation decision was made without procedural fairness because the delegate knew of a material change in circumstances, including the proposed sale of the pharmacy and the difficulties of communicating with Ms Hinde in custody, but did not invite comment or information about the true state of affairs before cancelling. That denial of procedural fairness was jurisdictional error, so the cancellation decision was of no legal effect and the delegate could consider the cancellation power on 26 May 2009 and decide not to cancel. The subsequent decisions not to cancel on 26 May 2009, 8 July 2009 and 17 August 2009 were not infected by failure to take into account legally...

Court Disposition

Application dismissed, subject to a declaration that the 20 April 2009 cancellation decision was null and void; applicant ordered to pay the respondents' costs.

Orders

  • ['Subject to order 2, the application be dismissed.' 'The Court declares that the decision of the first respondent of 20 April 2009 cancelling the approval of the third respondent as an approved pharmacist is null and void.' "The applicant is to pay the respondents' costs." 'Orders 1 to 3 take effect at 4pm on 12...