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

FEDERAL COURT OF AUSTRALIA

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

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

Parties: TIMOTHY JOHN FLAHERTY v THE SECRETARY, DEPARTMENT OF HEALTH AND AGEING, AUSTRALIAN COMMUNITY PHARMACY AUTHORITY and MARGARET HINDE

File number: NSD 233 of 2010

Judges: EMMETT, RARES AND NICHOLAS JJ

Date of judgment: 8 June 2010

Catchwords: ADMINISTRATIVE LAW – procedural fairness – delegate of the first respondent exercised discretion under s 98(3) of the National Health Act 1953 (Cth) to cancel the approval of the third respondent – delegate subsequently "remade" her decision and "reinstated" the approval on the basis that the third respondent may not have been afforded procedural fairness – whether third respondent had in fact been denied procedural fairness – delegate aware that third respondent had received offer to purchase her approval –whether procedural fairness required the delegate to provide the third respondent with a further opportunity to be heard in light of this information – third respondent had been sentenced to three years' imprisonment – whether inference should be drawn that the delegate was aware of this sentence at the time the original decision was made ADMINISTRATIVE LAW – whether the delegate had the power to "remake" the original decision under s 33(3) of the Acts Interpretation Act 1901 (Cth) – whether power to cancel an approval under s 98(3) of the National Health Act constituted a power to "make, grant or issue any instrument" for the purposes of s 33(3) of the Acts Interpretation Act – whether the provisions of the National Health Act evince a sufficient contrary intention to exclude the operation of s 33(3) Held: appeal allowed – third respondent was not denied procedural fairness by the delegate – original decision by the delegate to cancel the third respondent's approval was valid – delegate did not have the power under s 33(3) of the Acts Interpretation Act to remake the decision and reinstate the approval