Freedom Pharmaceutical Pty Ltd v Minister for Health [2022] FCAFC 123

Federal Court of Australia

Freedom Pharmaceutical Pty Ltd v Minister for Health [2022] FCAFC 123 Appeal from: Freedom Pharmaceutical Pty Ltd v Minister for Health [2021] FCA 213

File number: NSD 413 of 2021

Judgment of: MARKOVIC, THOMAS AND STEWART JJ

Date of judgment: 20 July 2022

Catchwords: ADMINISTRATIVE LAW – appeal from a single judge of the Federal Court of Australia – where primary judge dismissed an application for judicial review of a decision of the Minister made pursuant to s 90A of the National Health Act 1953 (Cth) granting approval to a premises to supply pharmaceutical benefits – where Minister notified the appellant of the request for exercise of discretion and invited comments – whether primary judge erred in holding that notification without further details of the application was sufficient – where Minister concluded that a "community" would be left without "reasonable access" to pharmaceutical benefits if the approval were not granted – where premises in respect of which approval was granted is located approximately 60m from appellant's pharmacy – whether primary judge erred in construing the scope of the Minister's discretion – appeal dismissed

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Health Legislation Amendment (Pharmacy Location Arrangements) Act 2006 (Cth) National Health Act 1953 (Cth) ss 90, 90A, 90B, 90D, 90K National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Cth)

Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 397 ALR 1 Freedom Pharmaceutical Pty Ltd v Minister for Health [2021] FCA 213 Kong v Minister for Health [2014] FCAFC 149; 227 FCR 215 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 Pharmacy Restructuring Authority v Chatfield [1993] FCA 495; 43 FCR 418 Stambe v Minister for Health [2019] FCA 43; 270 FCR 173