Location rules dispute continues

Health Minister and 24-hr pharmacy owner to pay $64,000 in costs over Federal Court decision – but the pharmacy could still go ahead

In January this year the owner of two Melbourne pharmacies had his case upheld in Federal Court against the Health Minister and another pharmacy owner over the approval of a 24-hour pharmacy attached to a medical centre.

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

In his submission to the Minister, Mr Stambe 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.

He argued that the proposed pharmacy was only approximately 136 metres and 239 metres respectively from his two pharmacies.

While the application for the new pharmacy was initially rejected, the Health Minister exercised his discretionary power to approve it in November 2017, saying it was in the public interest.

The pharmacy began trading in March 2018.

Justice Debra Mortimer was satisfied that at the time of the exercise of power, the Minister had neither read nor “considered” the objections Mr Stambe had provided.

In a follow-up decision this month, Justice Mortimer found that while the Minister’s decision in November 2017 was “an unlawful exercise of power” and should be set aside, there was still a further decision to be made on the status of the 24-hour pharmacy.

“The power has been exercised, and an approval granted: it is one which is in force, being acted upon every day, and entitling members of the public to receive pharmaceutical benefits dispensed by the second respondent,” she said.

“If the Minister’s decision is affected by error, so that the approval should not stand because of that error (both of which are findings the Court has already made), then before there can be a further exercise of power, the current approval must be set aside. It must be deprived of its effect. The Court must send the question of the exercise of power back to the Minister for reconsideration, according to law.”

Taking into account potential financial impact on the owner of the 24-hour pharmacy and any impacts on the patients of the medical centre – should the pharmacy be forced to close – Justice Mortimer decided that the order to set aside the approval take effect in two months from now (June 2019).

This would give the 24-hour pharmacy owner and the medical centre “an opportunity to prepare for a possible temporary closure of the pharmacy … while its request for approval is reconsidered”.

The Minister will be given an opportunity to reconsider the pharmacy application from the June date, with Mr Stambe to have the opportunity to provide comments on, or information or documents relevant to, the application before the Health Minister makes a decision.

Regarding costs from the original decision, the Minister for Health agreed to pay Mr Stambe’s costs of $35,093.33 and the owner of the 24-hour pharmacy will pay $28,906.67, a total of $64,000.

Meanwhile Mr Stambe signalled his intention to open one of his pharmacies to trade 24-hours, seven days a week in order to service the patients of the medical centre  – but only if the disputed pharmacy were to lose its approval.

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