Stambe v Minister for Health

• Jurisdiction: Australia Federal only
• Judge: MORTIMER J
• Judgment Date: 29 January 2019
• Neutral Citation: [2019] FCA 43
• Court: Federal Court
• Date: 29 January 2019

FEDERAL COURT OF AUSTRALIA

Stambe v Minister for Health [2019] FCA 43

File number:	VID 1399 of 2017
Judge:	MORTIMER J
Date of judgment:	29 January 2019
Catchwords:	ADMINISTRATIVE LAW – application for review of exercise of Ministerial discretion pursuant to s 90A(2) of the National Health Act 1953 (Cth) granting approval to supply pharmaceutical benefits at particular premises – whether procedures required by law to be observed were not observed – whether Minister failed to consider comments, information and documents provided by applicant pursuant to invitation by Minister to do so – where Minister’s consideration informed by Ministerial briefing note – where Minister adopted draft reasons prepared by departmental staff subsequent to exercise of discretion – consideration of availability of inferences concerning which materials read by Minister – in the circumstances, Minister failed to consider materials provided by applicant – application allowed on ground one ; ADMINISTRATIVE LAW – application for review of exercise of Ministerial discretion pursuant to s 90A(2) of the National Health Act 1953 (Cth) granting approval to supply pharmaceutical benefits at particular premises – whether Minister failed to take into consideration relevant considerations or took into account irrelevant considerations – matters raised by applicant were neither irrelevant nor mandatory considerations – whether Minister’s decision involved an error of law in definition of “community” adopted – no error in definition adopted by Minister – grounds two and three dismissed ; STATUTORY INTERPRETATION – consideration of scope of Ministerial discretion pursuant to s 90A(2) of the National Health Act 1953 (Cth) – interpretation of scope of Minister’s obligation under s 90D(3) of the National Health Act 1953 (Cth) to consider comments, information or documents provided by a person at Minister’s invitation
Legislation:	Constitution Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(b), 5(1)(e), 5(1)(f), 5(2)(a), 5(2)(b), 13 Environment Protection and Biodiversity Conservation Act 1999 (Cth) Federal Court of Australia Act 1976 (Cth) s 37N Migration Act 1958 (Cth) ss 501(3), 501G(1)(e) National Health Act 1953 (Cth) ss 90, 90A, 90B, s 90D, 99L, Part VII Trade Practices Act 1974 (Cth) Part IIIA
Cases cited:	Anderson v Director-General of the Department of Environmental and Climate Change [2008] NSWCA 337; 251 ALR 633 Angelos v Minister for Health [2014] FCA 706; 226 FCR 275 Assarapin v Australian Community Pharmacy Authority [2016] FCAFC 9; 239 FCR 161 Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345 Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152; [1939] 3 All ER 722 Chetcuti v Minister for Immigration and Border Protection [2018] FCA 477 CRI026 v Republic of Nauru [2018] HCA 19; 355 ALR 216 Folau v Minister for Immigration and Border Protection [2017] FCAFC 214; 256 FCR 455 Hanna v Minister for Health [2013] FCA 303 Hooton v Minister for Home Affairs [2018] FCAFC 142 Hope v Australian Community Pharmacy Authority [2016] FCA 1597 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854; 114 FCR 311 Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; 14 ALD 291 Kong v Minister for Health [2014] FCAFC 149; 227 FCR 215 Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; 249 FCR 275 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; 106 FCR 426 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281; 125 FCR 433 Murray v Australian Community Pharmacy Authority [2017] FCA 705 Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 NBMT v Minister for Immigration and Citizenship [2012] FCA 508; 128 ALD 119 Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2003] FCA 1263; 133 FCR 190 Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; 246 CLR 379 Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 351 ALR 225 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Stirling v Minister for Finance [2017] FCA 874 Swift v SAS Trustee Corporation [2010] NSWCA 182 Tickner v Chapman [1995] FCA 987; 57 FCR 451 Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273; 230 FCR 243 Yu v Minister for Health [2013] FCA 261; 216 FCR 168
Date of hearing:	2 August 2018
Date of last submissions:	17 August 2018
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	181
Counsel for the Applicant:	Mr C J Gunson SC and Ms R Howe
Solicitor for the Applicant:	Robert James Lawyers
Counsel for the First Respondent:	The First Respondent filed a submitting notice save as to costs
Counsel for the Second Respondent:	Mr B Lim
Solicitor for the Second Respondent:	Mr D E Raftesath of Meridian Lawyers

ORDERS

		VID 1399 of 2017
BETWEEN:	DOMINIC STAMBE Applicant
AND:	MINISTER FOR HEALTH First Respondent ; YL HEALTH GROUP PTY LTD (ACN 602 917 742) Second Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	29 January...