Neelabindu Pty Limited and Australian Community Pharmacy Authority [2009] AATA 68; (2009) 49 AAR 348 (4 February 2009)

Administrative Appeals Tribunal

[Index] [Search] [Download] [Help]

---

Neelabindu Pty Limited and Australian Community Pharmacy Authority [2009] AATA 68 (4 February 2009); (2009) 49 AAR 348

Last Updated: 3 November 2010

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2009] AATA 68

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3151

GENERAL ADMINISTRATIVE DIVISION		)
	Re		NEELABINDU PTY LIMITED

Applicant

And

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

Respondent

DECISION ON JOINDER

Tribunal

Mrs Josephine Kelly, Senior Member

Date 4 February 2009

Place Sydney

Decision

Pursuant to section 30(1A) of the Administrative Appeals Tribunal Act 1975, the Tribunal refuses Mr Martin Quinn’s application to be joined as a party to proceedings.

....................[sgd]........................
Senior Member
Mrs Josephine Kelly

CATCHWORDS

PRACTICE AND PROCEDURE – Application to be joined as party – Reviewable decision to refuse approval to dispense pharmacy benefits to pharmacy – Joinder application by neighbouring pharmacy - Discretion – Factors relevant to discretion - Application refused

Administrative Appeals Tribunal Act 1975 Act 1975, ss 2A, 30(1A)

National Health Act 1953, s 90

Re Hanna and Australia Community Pharmacy Authority [1999] AATA 776

WRITTEN REASONS FOR ORAL DECISION

4 February 2009

Mrs Josephine Kelly, Senior Member

1. This is my decision in the matter of Neelabindu Pty Limited (Neelabindu) and Australian Community Pharmacy Authority (ACPA).
2. On 14 January 2009 Mr Martin Quinn applied to be joined as a party to these proceedings pursuant to s 30(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) which provides:

(1A) Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.

3. The applicant in the proceedings, Neelabindu, opposes joinder, but the respondent, ACPA does not. Each of the parties was represented at the hearing of the joinder application.
4. Extensive submissions were made by Mr Flaherty for Neelabindu, and Mr Easton, who appeared for Mr Quinn.
5. In the substantive proceedings before the Tribunal, Neelabindu seeks the review of ACPA's decision made on 27 June 2008 to recommend to the Secretary, Department of Health and Ageing, that Neelabindu's application for approval to dispense pharmaceutical benefits pursuant to s 90 of the National Health Act 1953 (the Act) from premises in Norwood, Tasmania not be approved. Mr Quinn owns a pharmacy in within 2 kilometres of the proposed site.
6. Neelabindu filed its application for review in this Tribunal on 14 July 2008, in which it stated that it had received the decision on 9 July 2008.

Consideration

7. I was taken to numerous authorities on the question of whether Mr Quinn's interests are affected by the decision within the meaning of s 30(1A) of the AAT Act. However, it is unnecessary for me to determine that question because, assuming for the purposes of this decision Mr Quinn's interests are affected, I would not grant the application for joinder in the exercise of my discretion, under s 30(1A) of the AAT Act, for the following reasons:

1. I am not satisfied that there was a good reason for the six month delay in making the application to be joined. Mr Easton's explanation was that Mr Quinn did not appreciate the consequences of the Tribunal's decision. Given that a comprehensive submission was made to ACPA in June 2008 on Mr Quinn's behalf by the firm of solicitors currently representing him, I do not find the explanation convincing. Further, the matter is ready for a hearing date to be allocated. Expert reports have been filed on behalf of both parties.

2. Mr Easton sought to assure me that joinder would not unnecessarily extend the time and hence the costs of the proceedings. However, he was not able to specify the extent of any submissions or further evidence, in particular expert evidence, that might be relied on by Mr Martin because he said that he was not aware of the evidence filed or precisely what the issues in the proceedings are. I indicated during the hearing that an order for joinder could be made subject to directions limiting the extent of submissions and further evidence, however, taking into account the uncertainty of what might occur, the delay in making the application, and that the matter is ready to have a hearing date allocated, I have concluded that this is not a case where appropriate directions could be formulated and met within an appropriate time frame.

3. ACPA is taking an active role in the proceedings supporting its decision. This is not a case where there is no "contradictor". I do not accept Mr Easton's submission that the "central" contradictors are Mr Quinn and Neelibindu.

4. The Tribunal will have the benefit of an extensive submission made on Mr Quinn’s behalf to ACPA. Those submissions are included in the T Documents. Mr Easton said that it was made "blind", not knowing what Neelibindu's submission was. Given the length (24 pages) of, and detail contained in the submission made on behalf of Mr Quinn, and that it was prepared by a firm of solicitors that I was informed is experienced in the field, I am of the view that Mr Easton's claim is somewhat exaggerated. The submission addressed the issues in the substantive proceedings – the identification of the "catchment area" and the "resident population". These were also the matters that that Mr Easton understood to be the issues in the proceedings.

5. My task is a balancing exercise, to weigh the interests of the proposed joined party with the interests of the applicant and respondent: Re Hanna and Australian Community Pharmacy Authority at [30]. Taking into account all the arguments put to me on behalf of the applicant for joinder and Neelabindu, I consider that this is not a case where an order for joinder should be made. I do not consider that unfairness or prejudice will result to Mr Quinn. I was not persuaded that his participation and the consequential delay would assist the Tribunal in its task of making the correct or preferable decision.

6. Finally, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 2A of the AAT Act). In my opinion, in this case, that objective is served by refusing Mr Martin's application for joinder.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.

Signed: ......[sgd]............

Steven Mulipola, Associate

Date of interlocutory hearing: 3 February 2009

Date of oral decision: 4 February 2009

Date of written reasons: 4 February 2009

Solicitors for the Applicant: Robert King & Associates

Solicitors for the Respondent: Australian Government Solicitor

Solicitors for the Joinder Applicant: Wendy Hart Solicitors

Counsel for the Joinder Applicant: Mr M Easton