Flaherty v Secretary, Department of Health and Ageing [2010] FCAFC 67

Flaherty v Secretary, Department of Health and Ageing [2010] FCAFC 67

The delegate validly cancelled Ms Hinde's approval on 20 April 2009 because she had afforded Ms Hinde and her solicitor an ample opportunity to respond before 10 April 2009, the information about Ms Sevil's offer was not adverse information requiring a further hearing, and no proper inference could be drawn that the delegate knew of the sentencing information when making the decision. The delegate's power under s 98(3) was a power to cancel an approval, with written notice as the means of communication, not a power to make, grant or issue an instrument for the purposes of s 33(3) of the Acts Interpretation Act 1901 (Cth); in any event, the scheme of the National Health Act 1953 (Cth),...

Jurisdiction
Australia
Judgment Date
08 June 2010
Procedural Posture
Appeal From Federal Court Judicial Review Proceeding Under the Administrative Decisions (judicial Review) Act 1977 (cth) Concerning Decisions Under S 98 of the National Health Act 1953 (cth) / Full Court Appeal From Orders Dismissing the Proceeding at First Instance
Outcome
Appeal allowed.
Legal Topics
['procedural Fairness' 'jurisdictional Error' 'cancellation of Pharmacist Approval' 'power to Revoke or Remake Administrative Decisions' 'acts Interpretation Act 1901 (cth) S 33(3)' 'national Health Act 1953 (cth) S 98(3)']
['administrative Law' 'health Law'] ['procedural Fairness' 'jurisdictional Error' 'cancellation of Pharmacist Approval' 'power to Revoke or Remake Administrative Decisions' 'acts Interpretation Act 1901 (cth) S 33(3)' 'national Health Act 1953 (cth) S 98(3)']

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Procedural Posture

Appeal From Federal Court Judicial Review Proceeding Under the Administrative Decisions (judicial Review) Act 1977 (cth) Concerning Decisions Under S 98 of the National Health Act 1953 (cth) / Full Court Appeal From Orders Dismissing the Proceeding at First Instance

Legal Issues

  1. 1 ['Whether the delegate denied Ms Hinde procedural fairness before cancelling her approval under s 98(3) of the National Health Act 1953 (Cth) on 20 April 2009.' 'Whether an inference should be drawn that the delegate knew, when making the cancellation decision, that Ms Hinde had been sentenced to imprisonment for more than three years.' 'Whether s 33(3) of the Acts Interpretation Act 1901 (Cth) authorised the delegate to revoke or remake the cancellation decision and reinstate the approval.' 'Whether the subsequent decisions to reinstate, not cancel, or deactivate the approval were valid.']

Ratio Decidendi

The delegate validly cancelled Ms Hinde's approval on 20 April 2009 because she had afforded Ms Hinde and her solicitor an ample opportunity to respond before 10 April 2009, the information about Ms Sevil's offer was not adverse information requiring a further hearing, and no proper inference could be drawn that the delegate knew of the sentencing information when making the decision. The delegate's power under s 98(3) was a power to cancel an approval, with written notice as the means of communication, not a power to make, grant or issue an instrument for the purposes of s 33(3) of the Acts Interpretation Act 1901 (Cth); in any event, the scheme of the National Health Act 1953 (Cth),...

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The orders made by the primary judge on 12 February 2010 be set aside.' 'The Court declares that, pursuant to s 98(3) of the National Health Act 1953 (Cth), on 20 April 2009 the first respondent cancelled the approval of the third respondent under s 90 of the Health Act numbered 12370C and...