Location rules court contest


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The owner of two Melbourne pharmacies has had his case upheld in Federal Court against the Health Minister over the approval of a 24-hr pharmacy attached to a medical centre

The Federal Court has ruled that the Minister for Health had failed to “consider” the objections of a Melbourne pharmacy owner before approving a new pharmacy to be opened nearby.

In his submission to the Minister, the owner objected to the proposal of a 24-hour pharmacy attached to a large medical centre in south-east Melbourne, which would be considerably less than 500 metres from his two pharmacies.

His submission stated that the proposed pharmacy was only approximately 136 metres and 239 metres respectively from his two pharmacies.

Initially the application for the new pharmacy was rejected by a delegate of the Secretary in May 2017.

However after the applicants made a request to the Health Minister to exercise his discretionary power, the pharmacy was approved in November 2017.

The Health Minister had decided it was in the public interest to approve the new pharmacy.

His findings were that the distance for medical centre patients to travel outside opening hours of the two nearest approved pharmacies “would leave that community without reasonable access to pharmaceutical benefits”, especially as the medical centre was planning to change to a 24-hour format.

Meanwhile in a submission to the Health Minister the pharmacist argued there was already a “saturation” of pharmacies in the area, and contended that the trading hours of the eight existing pharmacies, and one pharmacy department attached to a local private hospital covered all but one hour of the opening hours of the existing medical centres, including the existing hours of the medical centre in question.

He commenced court proceedings against the Health Minister and the operator of the new pharmacy in December 2017, based on the grounds that in approving the new pharmacy, the Health Minister had “failed to consider, or alternatively failed to give proper genuine and realistic consideration to, the comments, information and documents” the pharmacist had provided as a rebuttal to the proposal.

Looking into the Minister’s decision, Justice Debra Mortimer noted that several arguments the pharmacist had brought up had not been addressed by the Minister in his reasons for the decision.

She was satisfied that at the time of the exercise of power, the Minister neither read nor “considered” the responses the pharmacy owner had provided.

Justice Mortimer concluded that under the law the Minister had had an obligation to consider any comments, information or documents received regarding the application.

“While the Minister of course did not have to accept what the applicant put, he did have to consider it,” she said.

She upheld the first grounds for judicial review, but dismissed two other grounds.

All parties must now attempt to agree on appropriate final orders, including as to costs, or in absence of this to file further evidence relevant to orders sought.

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