Nguyen v Minister for Health & Ageing [2002] FCA 1241 (10 October 2002)

Last Updated: 10 October 2002

FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Health & Ageing [2002] FCA 1241

ADMINISTRATIVE LAW - application for judicial review - decision by Minister for Health and Ageing to revoke approval as "approved pharmacist" under s 133(2)(b) of the National Health Act 1953 (Cth) - approval granted jointly to applicant and her sister - applicant's sister convicted of fraud - power to revoke - whether single approval granted jointly or more than one approval - whether approval can only be revoked in its entirety - whether power to revoke includes power of partial revocation - discretion - whether Minister's discretion miscarried by reason of erroneous construction of relevant statutory provision

National Health Act 1953 (Cth) ss 4, 84, 85(1), 87, 89, 90, 92A(3), 95(1), (8), 98(1), (3), 99, 133

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Acts Interpretation Act 1901 (Cth) ss 15AA, 23, 33

Re Stormon and Pharmacy Restructuring Authority (1995) 37 ALD 315 at 319 referred to

Heslehurst v New Zealand [2002] FCA 429; (2002) 189 ALR 99 at 103 referred to

Registrar of Liquor Licences v Iliadis (1988) 19 FCR 311 at 313 and 314-315 discussed

Sotomayor v Registrar of Liquor Licences (1990) 100 FLR 249 discussed

R v Lewes Justices; Ex parte Trustees of the Plumpton and District Club [1960] 1 WLR 700 discussed

Crafter v McKeough [1943] SASR 371 at 377 referred to

Edenmead Pty Ltd v Commonwealth of Australia (1984) 59 ALR 359 referred to

Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 at 335 referred to

Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal (1988) 84 ALR 669 at 678-679 referred to

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 referred to

Mabey v Australian Film Commission (1984) 57 ALR 583 referred to

Australian Capital Equity Pty Ltd v Beale (1993) 114 ALR 50 referred to

Attorney-General v Great Eastern Railway Co. (1880) 5 App Cas 473 referred to

Laird v Municipality of Portland [1958] Tas SR 90 referred to

Thompson v Minister for Education of Queensland (1993) 29 ALD 525 referred to

Hurst v Picture Theatres Ltd [1915] 1 KB 1 referred to

Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338 discussed

Brenchley v Lynn (1852) 2 Rob Eccl 441 at 462 referred to

In the Will of F.J.Page [1969] 1 NSWR 471 referred to

Leonard v Leonard [1902] P 243 referred to

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 referred to

C Enright, Federal Administrative Law (2001) at 70

F Bennion, Statutory Interpretation (3^rd ed. 1997) at 18

KIMBERLEY NGUYEN v MINISTER FOR HEALTH AND AGEING

V580 of 2002

WEINBERG J

10 OCTOBER 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V580 OF 2002

BETWEEN:	KIMBERLEY NGUYEN APPLICANT
AND:	MINISTER FOR HEALTH AND AGEING RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	10 OCTOBER 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The decision of the Minister for Health and Ageing on 30 August 2002, made pursuant to s 133(2)(b) of the National Health Act 1953 (Cth), to revoke the approval numbered 20689X granted jointly to Tina Trinh Nguyen and Helena Huong Nguyen (now known as Kimberley Nguyen) in relation to premises at 270 Hampshire Road, Sunshine, Victoria, be set aside.

2. The respondent pay the applicant's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V580 OF 2002

BETWEEN:	KIMBERLEY NGUYEN APPLICANT
AND:	MINISTER FOR HEALTH AND AGEING RESPONDENT

JUDGE:	WEINBERG J
DATE:	10 OCTOBER 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The applicant, Kimberley Nguyen (formerly known as Helena Huong Nguyen and Huong Thi Thuy Nguyen), seeks relief pursuant to s 5 of that Act.

2 The applicant claims that a decision made by the Minister for Health and Ageing ("the Minister") on 30 August 2002 to revoke her approval as an "approved pharmacist", pursuant to s 133(2) of the National Health Act 1953 (Cth) ("the Act"), should be set aside.

THE EVIDENCE IN THIS PROCEEDING

3 The evidence in this proceeding is by way of statement of agreed facts. That evidence may be summarised as follows:

* On 31 October 1996 the applicant was registered as a pharmacist in the State of Victoria pursuant to the Pharmacists Act 1974 (Vic). At all material times she remained so registered.

* At all material times up to 5 September 2002 the applicant's sister Trinh Thi Thuy Nguyen was similarly registered.

* Between 1 August 1997 and 4 December 2001 the applicant and her sister were in partnership together in the conduct of the business of a pharmacy situated in Hampshire Road, Sunshine.

* On 4 August 1997 both the applicant and her sister completed, signed and lodged a document entitled "Application for Approval as a Pharmacist" pursuant to s 90 of the Act. That document recorded that both the applicant and her sister "hereby apply for approval as a pharmacist" in respect of premises situated at the Hampshire Road address. They both declared that they were pharmacists registered under the laws of Victoria, that they had a legal right to use the Hampshire Road address for the purpose of the approval and that they were willing to supply on demand at or from those premises pharmaceutical benefits in accordance with Pt VII of the Act.

* On 26 November 1997 James Cockwill, a delegate of the Secretary to the Department of Health and Family Services, signed a document headed "Approval as a Pharmacist". That document stated that Mr Cockwill approved "Tina Trinh and Helena Huong Nguyen" trading as "Trinh Nguyen Pharmacy" for the purposes of supplying pharmaceutical benefits on demand at or from premises situated at 270 Hampshire Road, Sunshine. It bore a single approval number, 20689X.

* From 26 November 1997 the partnership operated a pharmacy at the Hampshire Road address trading under the name "Trinh Nguyen Pharmacy".

* In December 2000, the applicant's sister was charged with defrauding a public authority under the Commonwealth, contrary to s 29D of the Crimes Act 1914 (Cth).

* On 13 June 2001 the applicant's sister pleaded guilty to that charge. The offence in question arose out of, or was connected with, the supply of pharmaceutical benefits under Pt VII of the Act. She was ordered to be released under s 20(1)(b) of the Crimes Act upon giving security by recognisance of $1,000 to be of good behaviour for three years.

* The applicant has not been charged with or convicted of any offence being an offence that arises out of, or is connected with, the supply of pharmaceutical benefits under Pt VII of the Act.

* On 4 December 2001 the applicant gave Notice of Determination of Partnership in accordance with various clauses of the Deed of Partnership executed on 1 August 1997.

* Between 10 December 2001 and 28 June 2002 there was a purported revocation of the approval by the then Minister for Health and Aged Care. The applicant challenged that revocation in the Federal Court alleging, inter alia, a denial of natural justice in the making of the revocation decision. However, by reason of an interlocutory order made by the Court, the revocation did not come into effect. The proceedings were resolved by consent. The approval was consequently restored by the respondent on 28 June 2002 with effect from the date of the purported revocation.

* By letter dated 4 July 2002 the Health Insurance Commission ("the HIC") invited joint submissions from the applicant and her sister as to why the approval, given under s 90 of the Act in respect of the premises situated at 270 Hampshire Road, should not be revoked pursuant to s 133(2)(b) of the Act.

* On 30 July 2002 the applicant's solicitors forwarded submissions to the HIC in response. Those submissions were made on behalf of the applicant alone, and not on behalf of her sister. The submissions were divided into two parts:

(a) submissions as to the power of the Minister under s 133(2)(b) to revoke the approval at all or insofar as it related to the applicant and

(b) assuming the power existed, submissions as to why it should not be exercised against the applicant.

* By notice dated 30 August 2002 expressed to be given under s 133(2)(b) of the Act the Minister revoked the approval which she described as "the Approval numbered 20689X granted jointly to Tina Trinh Nguyen and Helena Huong Nguyen (now known as Kimberley Nguyen) in relation to premises at 270 Hampshire Road Sunshine Victoria". The revocation was stated to take effect from the end of 4 September 2002.

* The Minister gave written reasons dated 3 September 2002 for her decision. The applicant received the Notice and the reasons on 4 September 2002.

* On 31 July 2002 the Pharmacy Board of Victoria ("the Board") cancelled the registration of the applicant's sister as a pharmacist under the Pharmacy Act 1974 (Vic) with effect from 5 September 2002.

* In July and August 2002 the Board conducted an inquiry into allegations against the applicant which were related to the matters to which her sister pleaded guilty.

* On 6 September 2002 the Board suspended the registration of the applicant as a pharmacist for a period of three months with effect from 14 October 2002. It did so upon the basis that the applicant was guilty of conduct discreditable to a pharmacist in that she failed to take reasonable precautions to ensure that the pharmacy was entitled to make the claims which were submitted on its behalf, that the benefits purportedly supplied had in fact been supplied, and to ensure that the payments received in respect of the claims were payments to which the business was lawfully entitled. The Board was not satisfied that other allegations made against the applicant had been proved.

THE DECISION UNDER REVIEW

4 The decision under review, in the proceeding before this Court, is the decision by the Minister to revoke the approval granted to the applicant and her sister by the Secretary on 26 November 1997. The Minister described that approval, which bore the number 20689X and was linked to the premises at 270 Hampshire Road, Sunshine, as having been granted to them "jointly". She characterised it as a single approval, although it had the effect of rendering both the applicant and her sister "approved pharmacists".

5 The power to revoke is contained in s 133(2)(b) of the Act. It is vested in the Minister alone, and stands in stark contrast with the power to grant an approval, under s 90, which is vested in the Secretary.

6 After noting that it was the applicant's sister, and not the applicant, who had been convicted of an offence of the type referred to in s 133(1), the Minister deliberated upon the question whether that fact, of itself, conferred upon her the power to suspend or revoke the approval. She said:

"Accordingly, I am of the view that the approval may be suspended or revoked under section 133(2)(b) of the [the Act], notwithstanding that Kimberley Nguyen, who has not been charged or convicted of an offence, may be adversely affected by the revocation of the approval."

7 The Minister then went on to observe that she had a discretion whether or not to suspend or revoke the approval. Although, s 133 did not specify any factors which she should consider when exercising that discretion, relevant considerations could be gleaned from an analysis of the purpose, structure and text of the Act.

8 The Minister then addressed each of the points made by the applicant in support of her claim that the approval should not be revoked:

* The Applicant's Claim: The applicant and her sister each held separate and individual approvals, even though they were recorded in a single instrument described as "an Approval". The applicant had not been convicted of an offence under s 133(2) of the Act. Accordingly, although the Minister had power to revoke the approval which had been granted to the applicant's sister, she could not revoke the approval which had been granted to the applicant.

The Minister's Response: There had only ever been one approval. That approval had been granted to the applicant and her sister "jointly", in relation to one set of premises. If the Minister had the power under s 133(2) to revoke that approval because of the conduct of the applicant's sister, she had the power to revoke it in its entirety. That meant that it could be revoked not just in relation to the applicant's sister, but also in relation to the applicant.

* The Applicant's Claim: A construction which authorised the Minister to revoke or suspend an approval relating to the applicant would result in great injustice and should be avoided unless there were clear words in s 133 which required that result.

The Minister's Response: The construction which the Minister adopted did not cause a "great injustice". Under that construction the Minister had a discretion as to whether or not to suspend or revoke an approval. In exercising that discretion the Minister would take into account the potential effect upon the applicant. Moreover, it was also relevant that "an approved pharmacist in the position of Kimberley Nguyen can make an application for a new approval under s 90 of [the Act]".

* The Applicant's Claim: Further, and in the alternative, the "approved pharmacist" was the partnership between the applicant and her sister. As the partnership had not committed an offence there was no power to suspend or revoke the approval pursuant to s 133.

The Minister's Response: Under s 90 an approval is granted to a legal person or persons. Ordinarily partnerships are not legal persons. When the approval was granted to the applicant and her sister, both of whom were legal persons, they each acquired "approved pharmacist status". Any partnership in which they were involved did not become an "approved pharmacist".

* The Applicant's Claim: It was the applicant's intention to sell the pharmacy, using her "approved pharmacist" status. If the applicant lost that status, the pharmacy could not be sold as a going concern. It would therefore fetch a significantly lower price.

The Minister's Response: The applicant may indeed suffer a financial disadvantage by reason of the Minister's decision. However, the Minister was required to balance the harm that revocation of the approval would inflict upon her as against the other factors that weighed in favour of its suspension or revocation. In any event, a new owner of the premises would be able to apply, under s 90, for an approval which related to those premises.

* The Applicant's Claim: The applicant had requested the Secretary to grant her an approval relating to the premises at 270 Hampshire Road, Sunshine by reason of a change in the ownership of the pharmacy which was said to have been brought about by a change in the constitution of the partnership that owned the pharmacy. The HIC had refused to process that request until a decision regarding the suspension or revocation of the approval by the Minister had been made. This was said to constitute an act undertaken for an improper purpose.

The Minister's Response: The Minister noted that this submission was a matter for the Secretary to consider, and not for her. She observed that it was her understanding that the Secretary was awaiting her decision as to revocation prior to dealing with the applicant's request. While the practical effect of a cancellation was similar to a revocation, s 133 had an important function in deterring behaviour relating to the provision of pharmaceutical services that was contrary to the public interest.

* The Applicant's Claim: The applicant was innocent of any wrongdoing. She had not been charged with any offence, even after a full investigation by the Australian Federal Police. The applicant's sister had also provided evidence that the applicant was not involved in, and had no knowledge of, the fraud. The applicant took no part in the running of the pharmacy, and was a partner in name only. She provided occasional assistance between August 1997 and October 2000 and received no financial benefit from doing so. From October 2000 to December 2001 she worked at the pharmacy full-time while her sister looked after her newborn child.

The Minister's Response: There was insufficient evidence to conclude that the applicant was involved in, or actually aware of, her sister's fraudulent conduct. However, that of itself did not prevent the Minister from revoking the approval given that, as an approved pharmacist deriving benefit from the regime under the Act, it was incumbent upon the applicant to take an active role in monitoring activities conducted in reliance upon the approval.

* The Applicant's Claim: The partnership had been dissolved. The applicant now had sole responsibility for the business and there was no need therefore to revoke the approval.

The Minister's Response: The applicant's sister, together with the applicant, was the holder of the approval. The Minister had to consider revoking that approval in order to send "a message of punishment and deterrence" to the applicant's sister, and "the pharmaceutical community generally". Revoking the approval would ensure that the applicant's sister could commit no further offences, of the type in question in connection with the supply of pharmaceutical benefits. It would also deter other pharmacists from committing such offences.

9 Having weighed all of the competing considerations the Minister determined that she should exercise her powers under s 133(2)(b) to revoke the approval, with effect from 4 September 2002.

THE GROUNDS OF THE APPLICATION

10 The applicant relied upon the following grounds in support of the application:

"1. The person who purported to make the decision did not have jurisdiction to make the decision.

PARTICULARS

1.1 The applicant was at all material times an `approved pharmacist' for the purposes of the National Health Act.

1.2 Section 133(2)(b) of the National Health Act confers power on the respondent to revoke an approval of an approved pharmacist where the approved pharmacist is convicted of an offence arising our of or connected with the supply of pharmaceutical benefits under Part VII.

1.3 The applicant has not been charged with or convicted of an offence arising out of or connected with the supply of pharmaceutical benefits under Part VII.

1.4 Accordingly, s.133(2)(b) of the National Health Act does not confer on the respondent power to revoke the applicant's approval.

1.5 Further or alternatively, the respondent erred in law in holding that there was a single approval in respect of the applicant and her sister Trinh Thi Thuy Nguyen (also known as Tina Trinh) and that on the conviction of the said Trinh Thi Thuy Nguyen for an offence arising out of or connected with the supply of pharmaceutical benefits under Part VII the respondent had the power under s133 of the National Health Act to revoke the approval of the applicant.

1.6 Further or alternatively, if there was in force a single approval with respect to the applicant and Trinh Thi Thuy Nguyen s133 required the Minister to sever the approval and revoke only that part of the approval as related to the pharmacist who had been convicted of an offence arising out of or connected with the supply of pharmaceutical benefits under Part VII.

2. The decision was not authorised by s.133 of the National Health Act.

PARTICULARS

2.1 The applicant refers to and repeats the particulars set out under paragraph 1 above.

3. The decision involved an error of law.

PARTICULARS

3.1 The applicant refers to and repeats the particulars set out under paragraph 1 above."

THE RELEVANT LEGISLATIVE SCHEME

11 The pharmaceutical benefits scheme which is established under the Act operates as a subsidy upon the supply of pharmaceuticals. The scheme operates as follows: a customer presents a prescription to an "approved pharmacist" who then supplies the drug at either no cost, or a fixed cost to the customer. The approved pharmacist then makes a claim on the Commonwealth for the value of the subsidy. Although the benefit is expressed to be given to the customer, in practical terms it operates as a payment to the pharmacist after the drug has been dispensed.

12 Part VII of the Act deals with the provision of pharmaceutical benefits. The detailed structure of payment for supply of benefits is set out in ss 85, 87 and 99 of the Act.

13 In order for a pharmacist to be able to participate in the scheme he or she must be what is described as an "approved pharmacist". That term is defined in s 84 as meaning:

" ... a person for the time being approved, or deemed to have been approved, under section 90."

14 Section 90 is of pivotal importance to this application. It relevantly provides:

"90 Approved pharmacists

(1) Subject to this section, the Secretary may, upon application by a pharmacist who is willing to supply pharmaceutical benefits on demand at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at or from those premises.

(2) Where a pharmacist desires to supply pharmaceutical benefits at or from several premises (being premises at which he or she carries on, or is about to carry on, business as a pharmacist) a separate application shall be made in respect of each of the premises and, where approval is granted in respect of 2 or more premises, a separate approval shall be granted in respect of each of the premises.

(3) Subject to this section, where an approved pharmacist desires to supply pharmaceutical benefits at or from premises (being premises at which the pharmacist carries on, or is about to carry on, business as a pharmacist) other than premises in respect of which approval has been granted, the Secretary may on application by the approved pharmacist, grant approval in respect of those other premises.

(3A) Subject to subsection (3AA), an application under this section must be referred to the Authority.

(3AA) Subsection (3A) does not apply to an application for an approval arising out of a change in the ownership of a pharmacy situated at particular premises if the change results or resulted from:

(a) the sale of the pharmacy; or

(b) the death of the owner or one of the owners of the pharmacy; or

(c) a change in the constitution of a partnership that owned the pharmacy;

if the pharmacy is to continue to operate at the same premises.

(3AB) In subsection (3AA):

pharmacy means a business in the course of the carrying on of which pharmaceutical benefits are supplied.

..."

15 Section 89 provides that a person is not entitled to receive a pharmaceutical benefit unless it is supplied by an approved pharmacist, at or from premises in respect of which the pharmacist is for the time being approved.

16 Section 92A provides that the approval of a person as an approved pharmacist is subject to a series of conditions which are thereafter set out.

17 Section 95(1) provides that the Minister may, after investigation and report, by the appropriate Committee of Inquiry, by notice in writing, suspend or revoke the approval of the pharmacist under s 90. Section 95(8) provides that the Minister shall not suspend or revoke an approval unless, having regard to the evidence before the Committee of Inquiry and the report of the Committee, the Minister is satisfied that the pharmacist has, in relation to or arising out of the approval, been guilty of conduct which is an abuse of that approval, or an abuse or contravention of the Act, as the case may be to be unfit to continue to enjoy the approval.

18 Section 98(1) provides that an approved pharmacist may request that his or her approval under s 90 in respect of all or any of the premises in respect of which he or she is approved be cancelled, and requires the Secretary, in those circumstances, to cancel that approval. Section 98(3) provides that where the Secretary is satisfied that an approved pharmacist is not carrying on business as a pharmacist at premises in respect of which the pharmacist is approved, the Secretary may, by notice in writing, cancel the approval of the pharmacist under s 90.

19 The other provision which is pivotal to this application is s 133 of the Act. That section relevantly provides:

"133 Effect of prosecution for offence

(1) Where a medical practitioner, a participating dental practitioner or an approved pharmacist is charged before a court with having committed an offence against this Act or the regulations or against another law of the Commonwealth, of a State, of an internal Territory, of the Territory of Cocos (Keeling) Islands or of the Territory of Christmas Island, being an offence that arises out of or is connected with the supply of pharmaceutical benefits under Part VII, the Secretary may, if the Secretary thinks fit, by notice in writing:

...

(c) in the case of an approved pharmacist--suspend the approval of that pharmacist under section 90.

(2) If a ... pharmacist is convicted of an offence referred to in subsection (1), the Minister may, by notice in writing:

(a) where the Secretary has, under subsection (1), suspended an authority or approval that relates to the ... pharmacist--remove that suspension; and

(b) suspend, or further suspend, for such period as the Minister specifies in the notice, or revoke, any authority or approval referred to in a paragraph of subsection (1), being an authority or approval that relates to the ... pharmacist.

...

(4) The Minister may, at any time, by notice in writing:

...

(b) restore any approval or authority revoked under subsection (2).

...

(7) In this section:

approved pharmacist has the same meaning as in Part VII.

Pharmacist includes a person to whom subsection 90(6) applies."

THE SUBMISSIONS BEFORE THE COURT

20 The primary submission advanced on behalf of the applicant was that the Minister had no power to revoke the approval. Essentially that argument relied upon three propositions:

(a) the power of revocation contained in s 133 of the Act could only be exercised in respect of the individual pharmacist who had been, relevantly, convicted of an offence arising out of or connected with the supply of pharmaceutical benefits under Pt VII;

(b) the approval granted under s 90, and revoked by the Minister pursuant to s 133, was not a single approval in respect of all pharmacists named in the approval;

(c) alternatively, if the approval was, upon its proper construction, a single approval, it was capable of being severed. In the circumstances of this case the Minister ought to have limited her act of revocation to so much of the approval as applied to the applicant's sister.

21 The respondent submitted that each of these propositions was incorrect because:

(a) when the full context of the legislative scheme for the granting, cancellation, and revocation of approvals under the Act was examined, it was clear that an approval was a single and indivisible act of giving permission;

(b) there was no express or implied power, let alone an obligation, to "sever" an approval. The existence of such a power was inconsistent with the nature of an approval under the legislative scheme.

22 Neither side was able to identify any authority which might cast light upon the proper construction to be accorded to the relevant legislative provisions. The arguments advanced were largely textual, supplemented by reference to what were said to be the objects of the Act and broad considerations of principle.

23 The applicant submitted that the pharmaceutical benefit scheme established by the Act operated as a subsidy upon the supply of pharmaceuticals. Approval under s 90 was in the nature of "permission" to participate in that scheme. Although the act of approval was

linked to specified premises, it was important to note that it was the pharmacist, and not the premises, that was "approved".

24 The applicant contended that although the act of approval may have been evidenced by a single instrument, there were in truth separate approvals in relation to the applicant and her sister. An approval could be given orally, and consisted of the granting of permission, and not the instrument which evidenced that grant. While it appeared that the approval which the Secretary had granted was "joint" in nature, the effect of that grant was to render each sister an "approved pharmacist", with her own separate and divisible rights and duties under the Act. Alternatively, even if there were only a single approval, s 133 upon its proper construction required that it be severed, and that only that part related to the applicant's sister be revoked.

25 The applicant contended that an approval under s 90 was in the nature of a statutory right conferred upon each person who applied for it, and did not permit approvals to be conferred on an entity without legal personality. Section 90(1) by its reference to "who" and s 90(2) by its reference to "he or she" evinced textual support for that proposition. That statutory right was not in the nature of property, which could be held jointly. The power to revoke an approval under s 133(2) only arose where the holder of that statutory right had been convicted of an offence of the requisite type. Because the applicant held an approval in her own right, and had not been convicted of any offence, the Minister had no power to revoke her approval.

26 The applicant argued that even if it were theoretically possible that an approval could be held "jointly", the approval granted in this case was not held in that manner. Each of the sisters had applied in her own right for the approval. It is true that they were in partnership. However, their partnership had no legal personality. Accordingly, there were two separate approvals, one held by each sister, for the purposes of s 133.

27 The applicant's alternative case was that even if there had been a single approval held "jointly", s 133 required, when it came to determining whether the approval should be revoked in its application to the offending partner, that it be severed in relation to the innocent partner. Section 133(1) made it clear that the only power to suspend an approval was linked to the approval of "that pharmacist", meaning the pharmacist who had been charged with, or convicted of, an offence. Section 133(2) referred to the revocation of an approval "that relates to the ... pharmacist", meaning the pharmacist who has been convicted of an offence. Accordingly, severance was required as a matter of law.

28 In support of these contentions the applicant noted that the approach taken by the Minister allowed for the revocation of an approval held by an entirely innocent party. It was submitted that an approach to the construction of the section which produced such a result should, if possible, be avoided. The Minister had claimed that this was a matter that went to discretion, rather than power. However, the applicant submitted that this was an unsatisfactory response. That was because, on the Minister's approach:

"...it is a bizarre discretion that is required to be exercised. The discretion to revoke is conditioned not by reference to the conduct of the felon but the conduct of another.

On her view of the section the Minister is required to either penalise an innocent party or reward a felon based on the effect of an innocent party. This could apply equally to a partnership of 20 as it could to a partnership of 2. It is a construction that should be avoided."

29 The Minister submitted that the legislative scheme demonstrated that the applicant's contentions were misconceived. Part VII of the Act provides for a scheme whereby individuals receive drugs or medicinal preparations at a rate subsidised by the Commonwealth through the payment directly to pharmacists, and others authorised to supply such drugs, of a certain amount of the costs. The entitlement to receipt of payment is carefully and closely regulated by a scheme of approvals, supervision, reporting, cancellation and revocation all designed to preserve the entitlements to payment for the supply of drugs to those who are qualified. The receipt of pharmaceutical benefits is restricted by two key concepts :

* supply by an "approved pharmacist"; and

* supply from the premises at which that pharmacist "is for the time being approved".

30 Likewise, payment for the supply of pharmaceutical benefits is restricted by two other concepts:

* supply of the drug in question; and

* the status of being an "approved pharmacist".

31 The Minister submitted that at both ends of the legislative scheme - the recipients of the benefit and payment for the supply of that benefit - the core requirement is to be an "approved pharmacist". That term, as defined in s 84 applied to a "person". The word "person" should be taken to mean an individual or a body corporate: see Acts Interpretation Act 1901 (Cth) (the "Acts Interpretation Act") s 22. Far from there being any "contrary intention" s 4 of the Act defines the term "pharmacist" as:

"a person registered as a pharmacist ... under a law of a State ... providing for the registration of pharmacists ... and includes:

(a) a friendly society or other body of persons (whether corporate or unincorporated) carrying on business as a pharmacist ..."

32 The Minister relied upon s 23 of the Acts Interpretation Act in support of her contention that there was a single approval granted to the applicant and her sister "jointly". That section relevantly provides:

"In any Act, unless the contrary intention appears:

...

(b) words in the singular number include the plural and words in the plural number include the singular."

33 The Minister submitted that although in some legislative contexts, provisions for approval of a person to engage in an activity or receive a benefit might evince an intention that such approvals could only be granted to one person at a time, this was not the position pursuant to s 90. She contended that the Acts Interpretation Act applied so that the word "pharmacist" should be construed as including "pharmacists" but a contrary intention was manifested in respect of the word "approval" which was to be construed as singular.

34 The textual considerations which were said to support the conclusion that an approval was a single and indivisible act of granting permission, even if more than one person's name appeared on the instrument evidencing that grant of permission, were as follows:

* an approval relates to particular premises: s 90(1);

* where there are separate premises, separate applications for approval must be made, and separate approvals granted: s 90(2);

* it is the approval of the premises which is fundamental to the scheme, the mechanism having as its focus the location of pharmacies in a planned manner: s 90(3);

* the Act specifically contemplates a change in the ownership of a pharmacy situated at particular premises if the change results from the sale of the pharmacy, the death of the owner or one of the owners of the pharmacy, or a change in the constitution of a partnership that owned the pharmacy, and provides a specific alternative mechanism for dealing with such change: s 90(3AA);

* Pt VII of the Act, including in particular s 86C, imposes obligations upon an "approved supplier", a term which pursuant to s 84 includes an "approved pharmacist". It would be impracticable to construe each of the obligations imposed, pursuant to s 86C, as falling directly and cumulatively upon individual pharmacists, rather than as obligations capable of being discharged by any one or more of the pharmacists holding a single approval; and

* the Secretary is empowered under Reg 8A of the National Health Regulations to allot a specific number to an approval.

35 The Minister also relied upon an observation by Senior Member Barbour in Re Stormon and Pharmacy Restructuring Authority (1995) 37 ALD 315 at 319 to the effect that:

"While a "pharmaceutical chemist" can include an unincorporated body of persons (eg a partnership) carrying on business as a pharmaceutical chemist, I am of the opinion that it is necessary for each person who makes up that partnership to be named in the approval of that "pharmaceutical chemist", for that partnership to be the "approved pharmacist" under s 90 of the National Health Act 1953."

36 It followed, so the Minister contended, that the applicant and her sister, having made a single application for approval in relation to particular premises, had obtained a single approval "jointly".

37 In relation to s 133, it was submitted that the power to suspend or revoke ought, in principle, to apply equally to all members of the same group of persons who derived the benefit of an approval under s 90. There was no reason to construe s 133 as being incapable of applying to a corporate entity. Such entities could, so it was submitted, defraud the Commonwealth by receiving payments for pharmaceuticals based on fraudulent claims. The legislative purpose underlying s 133(2) was said to be "protective and deterrent". Interestingly, the Minister conceded that s 133(2) was not punitive because "punishment" was left to the criminal courts and was a precondition to the operation of the section. The professional consequences were left to various State and Territory Registration Boards.

38 The Minister argued that it was an ordinary and anticipated aspect of the professional practice of a pharmacist that he or she would be conscious of, and supervise the conduct of the business to ensure that it operated lawfully. It was not unusual for partners to bear the consequences of the actions of their fellow partners.

39 The Minister challenged the applicant's contention that assuming there was a single approval, it could nonetheless be severed. She submitted that there was no authority to support that contention, though she conceded that there was no authority to deny it. She referred to s 33(3) of the Acts Interpretation Act and to the discussion of that section by Emmett J in Heslehurst v New Zealand [2002] FCA 429; (2002) 189 ALR 99 at 103. She submitted that s 33(3) could not operate to confer upon the Minister any power to vary an approval granted by the Secretary under s 90(1) of the Act. Not only would such a variation amount to the grant of a new approval, it would also be a power exercised by someone other than its statutory repository.

40 Finally, the Minister drew attention to two cases concerning licence cancellations involving more than one person: Registrar of Liquor Licences v Iliadis (1988) 19 FCR 311 and Sotomayor v Registrar of Liquor Licences (1990) 100 FLR 249. She submitted that the statutory provisions under consideration in those cases were distinguishable from those applicable to the present case, but did not develop that submission in oral argument.

CONCLUSION

41 The issues raised in this application essentially involve questions of construction, and the interrelationship between ss 90 and 133 of the Act. There have been other cases where similar provisions, albeit different statutory schemes, were considered.

42 In Registrar of Liquor Licences v Iliadis (supra) the Australian Capital Territory Gaming and Liquor Authority had cancelled an off licence issued under the Liquor Ordinance 1975 (ACT) in respect of certain premises. An appeal against that decision succeeded, and the Full Court of the Federal Court dismissed a further appeal from the judgment of the primary judge.

43 Section 51 of the Liquor Ordinance provided, inter alia, that the Authority could cancel a licence where the licensee was serving a sentence of imprisonment, or had been convicted of an offence of a specified type. The term "licensee" was defined to mean, in relation to a licence, the holder of the licence and in relation to licensed premises, the holder of the licence in force in relation to those premises.

44 The relevant facts were not in dispute. The licence was in the name of three individuals. On a particular date three offences of the type that would trigger cancellation were found proved against one of those three individuals. A fine of $200 was imposed. On a later date the same individual again pleaded guilty to two further offences of the type required to trigger the cancellation provision and was again fined. Subsequently the three individuals named in the licence transferred it to the five appellants in the case under consideration. It is interesting to note that, after the cancellation of the subject licence the Liquor Ordinance was amended so as to permit licences to be held by partnerships. It was also amended to make it clear that where a licence was issued in the names of two or more persons, a reference in the Liquor Ordinance to a licensee should be read as including a reference to each of those persons.

45 Davies J, with whom Kelly and Pincus JJ agreed, observed at 313 that there was much to be said for the view taken by the trial judge that, prior to the amendments, the Liquor Ordinance did not contemplate that a licence would be granted to more than one person. His Honour went on, at 314 to note that at the time that the individual in question had been convicted of the three offences under the Liquor Ordinance, he was only one of several persons who were the licensees of, and held the licence in respect of, the licensed premises. The proceedings before the Authority did not seek to cancel a licence held by that person alone and the proceedings before the trial judge had not raised an attack upon the validity of the licence granted to the other co-licensees. Its validity could therefore be assumed.

46 Accordingly, as Davies J noted, the licence which the Registrar of Liquor Licences sought to have cancelled was a licence held by several persons of whom the offender was only one. In respect of that licence, the co-licensees together were the holders of the licence. Davies J said at 314-5:

"The issue before the trial judge was whether that licence should have been cancelled pursuant to the provisions of s 51(1)(c) which permitted the Authority to cancel the licence where the licensee had been convicted of two or more offences against the Ordinance. The term "licensee" was specifically defined in s 4(1) as referring to "the holder of the licence".

In my opinion, the trial judge was correct in holding that the holder of the licence had not been convicted of two of more offences under the Ordinance, that only one of the licensees had been so convicted. Section 51(1) did not use the expression "a licensee" and the definition of licensee in s 4(1) did not refer to "a holder of the licence". I see no warrant for reading s 51(1) so as to permit the Authority to cancel a licence granted or transferred to several persons merely because one of those persons is serving a sentence of imprisonment or has been convicted of two or more offences or the like. One of several persons who hold a licence is not "the licensee"."

47 Davies J referred to R v Lewes Justices; Ex parte Trustees of the Plumpton and District Club [1960] 1 WLR 700 where a Divisional Court likewise rejected the view that a club licence was forfeited on the conviction of one member of the club for a licensing offence. The Divisional Court held that, under the relevant legislation, there was no power to order the forfeiture of intoxicating liquor, which had been sold by one member of a club who did not hold a justices' licence unless there had been a conviction of "the owner or occupier of the place". That meant that all of the owners or occupiers, where there were more than one, must be convicted of offences, in order to enliven the power to cancel the licence.

48 Davies J went on to observe at 315:

"Provisions for forfeiture or cancellation should not be given a meaning wider than that conveyed by the terms used unless the expanded meaning is clearly to be inferred ..."

49 His Honour concluded by referring to Crafter v McKeough [1943] SASR 371. There the Full Court of South Australia held that one of several co-licensees could be separately charged and convicted. Angas Parsons J said at 377:

"It is not necessary in the present proceedings to say anything on the result which will follow if only one of a plurality of licensees of one licensed premises is convicted."

50 In Sotomayor v Registrar of Liquor Licences (supra) Gallop J dealt with a similar issue. There an off licence had been cancelled after several convictions for selling liquor to underage persons. The individuals carrying on business in partnership appealed against the cancellation of the licence of the business which had been transferred to them by the offender. His Honour concluded that it had been an error to issue the licence in the individual names of the appellants, as partners, as was demonstrated by Iliadis. Nonetheless, the "licensee" (namely, the partners) had not, on two or more occasions, been convicted of an offence against the Liquor Ordinance. The holder of the licence at the relevant time was the "partnership", not the offender. The difficulty was resolved by s 48(2) which provided that where a licence issued in the name or names of one or more of a number of partners was held for the purposes of the partnership, a reference to the "holder of a licence" should be read as including a reference to any of the partners concerned in, or taking part in, the management of the business. It followed that the Authority had correctly held that the conviction of the one offender gave rise to the power to cancel the licence, notwithstanding that no other partner had been convicted.

51 Both Iliadis and Sotomayor seem to me to lend support to the Minister's contention that the approval granted to the applicant and her sister, in the present case, should be regarded as a single grant of permission, and not as two separate and distinct approvals. Upon a superficial analysis, Iliadis, and perhaps Sotomayor, might be thought to suggest that the Minister had no power to revoke that single approval, given that the applicant had not herself been convicted of an offence under s 133(2). However, the legislative scheme under consideration in those cases differed in certain important respects from that which operates under the Act in relation to pharmacists. For example, there appears to be no equivalent to s 48(2) of the Liquor Ordinance in the Act, and it will be recalled that that section assumed considerable significance in the reasoning of Gallop J in Sotomayor. It is clear that these cases are not directly in point.

52 Sotomayor suggests that the conviction of the applicant's sister was capable of triggering the revocation of the single approval granted, notwithstanding the Minister's finding that the applicant was not party to her sister's fraudulent conduct. On that analysis, whether or not the approval should be revoked involved an exercise of discretion. However, the discretion was to be exercised upon what was in effect, an "all or nothing" basis. In other words, if the Minister considered that the approval should be revoked, in relation to the applicant's sister, it had to be revoked in its entirety. That was so even if the applicant was thereby prejudiced through no fault of her own.

53 It is plain that s 90, upon its proper construction, authorises the Secretary to approve a pharmacist, or pharmacists, for the purpose of supplying pharmaceutical benefits at or from particular premises. In my view, that section contemplates that the Secretary may grant a single approval to one or more pharmacists who will hold that approval jointly. That conclusion is supported by the fact that, where a pharmacist desires to supply pharmaceutical benefits at or from several premises, s 90(2) requires that there be a separate application, and a separate approval, in respect of each of those premises.

54 It seems to me that s 133(2), upon its proper construction, empowers the Minister to revoke an approval granted under s 90 in circumstances where any one of a number of pharmacists who are joint holders of that approval has been convicted of a relevant offence. It is important to note that sub-section (2) operates when a "pharmacist" is convicted of such an offence, and not when the "holder of a licence", or "licensee", has been convicted of an offence. This is in stark contrast to Iliadis, where the difficulty was that "the licensee" (which there consisted of a plurality of individuals) had not been convicted of any offence, and therefore the trigger for cancellation was not met.

55 It follows that the conviction of the applicant's sister triggered the revocation of the approval which had been granted jointly to the applicant and her sister. That is not, however, the end of the matter. It will be recalled that the primary submission advanced by counsel for the applicant was that there were separate and distinct approvals given to each of the applicant and her sister. In the alternative it was submitted that even a single approval required "severance" if one of the "approved pharmacists" was innocent. That meant that, insofar as the approval applied to the applicant's sister, the Minister had the power to revoke it. However, insofar as it applied to the applicant, there was no power of revocation. In substance the submission was that the Minister had both the power and the duty to "sever" the approval or, in other words, to partially revoke it.

56 This alternative submission necessitates a consideration of whether the Minister has the power, under s 133(2)(b), to sever or partially revoke a single approval.

57 There can be no doubt that the Minister accepted that she had a discretion as to whether to revoke the approval, an approach which was plainly correct. However, she exercised that discretion upon the basis that no power existed to sever, or partially revoke, an approval. She exercised her discretion by balancing the considerations in favour of revocation, and those against, and ultimately concluded that the magnitude of the fraud committed by the applicant's sister necessitated revocation. She arrived at that conclusion notwithstanding the fact that revocation would visit significant harm upon the applicant, who was relevantly "innocent" of any involvement in her sister's fraud, though perhaps not entirely free from responsibility for what had occurred.

58 The question whether the Minister can sever or partially revoke an approval granted to several pharmacists "jointly" is a difficult one. The Act is silent on this issue. There appears to be no authority directly in point. It follows that regard must be had to ordinary principles of statutory construction in resolving that question.

59 The word "revoke" is defined in the Oxford English Dictionary as meaning "to recall, to draw back and to bring back into use or revive". That definition does not, of itself, assist in determining whether or not a power to revoke an approval may be exercised in respect of one of several joint holders, and not with respect to the others.

60 Normally one would turn to the general provisions applying to all statutory powers in the Acts Interpretation Act in an effort to resolve this question. Broadly stated, these provisions are contained in s 33 of that Act.

61 Section 33(1) provides that once conferred, a power may be exercised from time to time as the occasion requires. That sub-section seems to confer a measure of ancillary power. However, it is limited in scope. It simply enables a power which has already been exercised once, to be exercised on other occasions: Edenmead Pty Ltd v Commonwealth of Australia (1984) 59 ALR 359; Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 at 335 and Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal (1988) 84 ALR 669. The sub-section seems to have no direct application to the issue before the Court.

62 Section 33(3) provides that the power to make an instrument entails a power to vary and to rescind it: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; Mabey v Australian Film Commission (1984) 57 ALR 583 and Australian Capital Equity Pty Ltd v Beale (1993) 114 ALR 50. However, that sub-section is expressly limited to "instruments". As was accepted by counsel on both sides, the power conferred by s 133 upon the Minister to revoke an approval is not, of itself, a power to make, or issue, an instrument. It follows that the sub-section has no application.

63 None of the other sub-sections contained in s 33 of the Acts Interpretation Act have any application to the issue whether the Minister can sever, or partially revoke, an approval. One must therefore turn to the common law, and its canons of construction, to see whether s 133, supports such a power.

64 The most obvious statutory power is an express power. Plainly no power of severance or partial revocation has been expressly conferred by s 133. As well as express powers, statutes often confer upon the designated Ministers or officials implied powers. Where a statute confers an express power it is implicit that it confers ancillary powers as well. These are powers to do any incidental thing which is reasonably necessary to make the express grant of power effective: see C Enright, Federal Administrative Law (2001) at 70.

65 In Attorney-General v Great Eastern Railway Co. (1880) 5 App Cas 473 the House of Lords held that reasonable ancillary acts, though not expressly authorised by a statutory power, are not to be treated as ultra vires. That principle remains applicable as a canon of construction: see generally F Bennion, Statutory Interpretation (3^rd ed. 1997) at 184.

66 It should be noted that, at common law, the power to appoint to an office includes the power to remove from it: Laird v Municipality of Portland [1958] Tas SR 90 and Thompson v Minister for Education of Queensland (1993) 29 ALD 525. That principle finds expression in s 33(4) of the Acts Interpretation Act.

67 I can see no reason, in principle, why the power to grant a permission or approval should not be construed as containing within it the implicit power to sever, or partially revoke that permission or approval. If an owner of particular premises grants permission to several persons to enter those premises, as bare licensees, it seems plain that he may revoke that permission in relation to one or more of those persons without revoking it in its entirety. If one of those persons is a contractual licensee, while the other is a bare licensee, there is little doubt that although equity might assist the contractual licensee to remain on the premises (see Hurst v Picture Theatres Ltd [1915] 1 KB 1), the bare licensee will be a trespasser if he remains on the premises after the license granted to him has been revoked.

68 Moreover, the grant of a permission may be conditional. Where a condition is attached, and not met, the permission will be regarded as having been withdrawn. In Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338 it was held that the owner of certain premises who gave his neighbour a key to his house, and asked him to look after it while he was away on holidays, did not thereby grant him permission to enter the house as and when he saw fit. Where the neighbour entered the house, not for any legitimate purpose, but in order to steal the contents, he entered as a "trespasser", and was therefore properly convicted of burglary. The logic of the decision is compelling. In effect, the permission to enter was conditional. When the accused entered with an ulterior intent he breached that condition and the permission was, in substance, withdrawn.

69 There are other examples where the common law, and equity, have recognised a power of partial revocation. In Brenchley v Lynn (1852) 2 Rob Eccl 441 at 462 it was noted that the word "revocation" had several meanings. An example was "where a subsequent paper renders an earlier paper inoperative wholly or partly ..." (emphasis added)

70 The concept of "partial revocation" is well recognised in the law of succession. Voluntary revocation may be of the whole or only part of a will: see for example Wills Act 1997 (Vic) s 12. The extent of such revocation is determined by reference to the intention of the testator: In the Will of F.J.Page [1969] 1 NSWR 471. Where partial revocation renders the remainder unintelligible, the whole of the will is revoked: Leonard v Leonard [1902] P 243.

71 There is nothing in the Act to suggest that the power of revocation conferred upon the Minister by s 133(2)(b) should be restricted to a power of total revocation, or none at all. Rather, s 133 when read in its entirety, implicitly suggests that the power to revoke may be exercised in whole, or in part.

72 It will be recalled that s 133(2)(b), as well as providing for revocation, provides that the Minister may, by notice in writing, suspend, for such period as the Minister specifies in the notice, an approval. Suspension of an approval is obviously a less draconian measure than revocation. The plain intent of the sub-section is to confer upon the Minister a wide range of powers, capable of being used in a flexible manner, to further the objectives of the Act. If the Minister can suspend an approval for any period that she regards as appropriate, rather than revoking it, it is difficult to see why, assuming that revocation is warranted, it must be total, rather than partial.

73 Section 133 must be read purposively, in accordance with s 15AA of the Acts Interpretation Act. Section 133(2)(b) provides for the suspension or revocation of an approval as part of a regime of civil and administrative penalties under the Act. There is no reason whatever to construe the sub-section as requiring the Minister to approach the matter of revocation upon the basis that once the power to revoke has been triggered, and it is necessary to exercise that power in relation to a particular approved pharmacist, it must also be exercised in relation to all other approved pharmacists who are jointly subject to the same approval. It is clear that there will be cases where those other approved pharmacists have done nothing to merit revocation of an approval. I can see no legitimate purpose in construing s 133(2)(b) as requiring an approval be revoked in its entirety in such cases.

74 It is no answer to say, as the Minister did, that an innocent pharmacist whose approval has been revoked can always apply to the Secretary for a further approval. The facts of this case demonstrate that the process of approval, under s 90, may be fraught with difficulty. Indeed, a fresh approval may be impossible to obtain for reasons which have little to do with an applicant's suitability to operate as a pharmacist. It may be, for example that, as in the present case, a fresh approval will be unlikely to be granted because another pharmacy has commenced operating in close proximity to the premises in relation to which the approval is sought. Planning considerations, such as restrictions imposed upon the distance between pharmacies, may dictate that any such application be refused.

75 My conclusion that the power to revoke which is conferred upon the Minister may be exercised in relation one or more of several "approved pharmacists" is supported by the nature of an approval under s 90. That section makes it clear that the act of approval is personal, being directed towards a particular pharmacist or pharmacists. Although the approval is linked in a purposive manner to the premises from which the business is to be conducted, it is not an approval of those premises.

76 The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the statute viewed as a whole. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 the High Court, by majority, in effect read words into a section of the Income Tax Assessment Act 1936 (Cth) in order to avoid a drafting oversight, and to achieve a result which was consistent with what were perceived to be the parliament's manifest intentions. This was done to avoid the literal meaning of the words used, which would have produced a result that was "incongruous" or "capricious and irrational".

77 A provision which is capable of working manifest injustice if construed in a particular manner, should be read, so far as possible, in a way that avoids that consequence. That is all the more so when the alternative construction accords greater, and not less, power to the Minister in the discharge of her responsibilities under the Act, conformably with the principle that a power conferred includes ancillary powers.

78 If the applicant's contention that, as a matter of principle, her case should be considered separately from that of her sister is correct, and this leads to severance or partial revocation of the approval, the fact that this may create some minor administrative difficulties for the Minister's Department is of little consequence. If a new approval number is required to be allocated to an approval which has been partially revoked, then so be it. In any event, there is nothing sacrosanct about the manner in which an approval is recorded. The Act makes no provision for any prescribed form of approval.

79 The Minister plainly considered that the case for revoking the approval in relation to the applicant's sister was overwhelming. She would have been derelict in her duty had she come to any other conclusion. The fraud committed was systematic. It involved a substantial fraud upon the Commonwealth with a significant loss to the revenue. The applicant's sister did not challenge the decision to revoke the approval. One can readily understand why she did not do so.

80 The applicant is in a very different position. It is true that the Minister gave consideration as to whether she should exercise her power of revocation pursuant to s 133(2)(b) having regard to the circumstances surrounding the applicant's involvement in the conduct of the business. She concluded that there was insufficient evidence to establish that the applicant was involved in, or actually aware of her sister's fraudulent conduct. She considered that the applicant's lack of involvement in that conduct was a matter relevant to the exercise of her discretion. However, although she accepted that no criminality had been demonstrated on the part of the applicant, she considered that as an approved pharmacist deriving benefit from the legislative regime, it had been incumbent upon the applicant to take an active role in monitoring activities conducted in reliance upon the approval granted to her.

81 Although the Minister considered the applicant's conduct in determining whether to revoke the approval, she did so against the background of a construction of s 133(2)(b) which did not allow for partial revocation. It is clear that, at least by implication, the Minister regarded the applicant as having failed adequately to supervise the conduct of the pharmacy, and treated that failure as a relevant matter when determining whether to revoke the approval. However, the applicant's status as an "approved pharmacist" might have been viewed in a different, and perhaps more favourable light, had the Minister approached the exercise of her discretion, not on an "all or nothing" basis, but rather on the basis that the applicant's approval should be considered independently from that of her sister.

82 Whether the applicant's approval should be revoked is, at the end of the day, a matter for the Minister. However, the discretion vested in the Minister by s 133(2)(b) must be exercised in a lawful manner. The Minister must have regard to all relevant considerations which she is required by the Act to take into account. Conversely, she must disregard all irrelevant considerations.

83 For the reasons set out above, I consider that in the present case the Minister exercised her discretion upon an erroneous basis. She approached the task of balancing the competing interests by assuming that her powers under the Act were constrained to revoking the approval in its entirety, or not at all. In fact her powers were not so constrained, and were significantly wider than she was apparently advised. In truth, it was open to the Minister to revoke the approval in its application to the applicant's sister, but not in its application to the applicant. The Minister did not turn her mind to the possibility that the approval should not be revoked in its entirety. Her failure to consider that possibility meant that her discretion miscarried. Her decision to revoke the approval must, therefore, be set aside.

84 Although, it is necessary, for the reasons set out above, to set aside the Minister's decision to revoke the approval, there is nothing to prevent her from exercising her discretion afresh, in accordance with the requirements of the Act.

85 The applicant has been successful in having the decision of the Minister set aside, though not upon the basis of the primary submission advanced on her behalf. Nonetheless, the argument which has prevailed is closely akin to the alternative submission advanced by counsel for the applicant, namely that the decision to revoke the approval ought to have been `severed'. That alternative submission was put as going to power, and not as going to discretion. However, it was implicit in the way in which the argument was put that, as a "fallback" position, the Minister's discretion had miscarried with regard to the issue of severance. In those circumstances, the justice of the case requires that the respondent pay the applicant's costs.

I certify that the preceding eighty five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated: 10 October 2002

Counsel for the Applicant:	Mr R.M. Niall
Solicitor for the Applicant:	Wisewoulds
Counsel for the Respondent:	Ms D. Mortimer and Mr G. Rumble
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	24 September 2002
Date of Judgment:	10 October 2002