PHARMIRE PTY LTD and THE PHARMACY REGISTRATION BOARD OF WESTERN AUSTRALIA [2018] WASAT 88 (5 September 2018)

Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50

Jeruth Pty Ltd v Haybale Pty Ltd [2004] VSC 319

Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

Western Australian Planning Commission v Questdale Holdings [2016] WASCA 32

4.2 the SAT should not make an order for costs unless it finds that Pharmire has conducted itself in such a way as to unnecessarily prolong the hearing or has acted unreasonably or inappropriately: Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [85];

4.7 further, withdrawal does not amount to a concession that the claim was without foundation or that the dispute was not genuine. The SAT cannot draw any adverse inference against a withdrawing party: WA Country Builders Pty Ltd and Hathersage Nominees Pty Ltd [2016] WASAT 70 at [16].

As discussed further below, in its application for costs the Board attributes particular significance to the series of amendments made by Pharmire to the Franchise Agreement the subject of the application and to section 29(9). Accordingly, it is necessary to consider the principles applicable to that issue.
The nature of a review or an appeal depends upon the terms of the statute conferring the right of review or repeal. The statute in question may confer limited or large powers on the review body; it may confer new powers that are unique to the tribunal concerned or powers that are common to other appellate bodies: Coal and Allied Operations v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [11].
The combined effect of sections 67 and 68 of the Pharmacy Act 2010 is that a person who is aggrieved by a decision of the Board to refuse an application for registration may apply to the SAT for a review of that decision. The Pharmacy Act is an 'enabling Act' within the meaning of that term in section 3 and a review of the decision therefore falls within Division 3 of the SAT Act dealing with review jurisdiction.
Section 27 provides expressly that the review by the SAT is to be by way of a hearing de novo it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made. The purpose of the review is to produce the correct and preferable decision at the time of the decision upon review, that is, at the time of the SAT's decision. The SAT is required to give attention to the state of affairs existing at the date of its decision, and is not confined to the circumstances existing at the date of the decision under review: at .

(1997) 186 CLR 622

(2000) 203 CLR 194

Jeruth Pty Ltd v Haybale Pty Ltd

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Judgment (37 paragraphs)

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Legislation Cited (2)

Cases Cited (10)

PHARMIRE PTY LTD and THE PHARMACY REGISTRATION BOARD OF WESTERN AUSTRALIA [2018] WASAT 88 (5 September 2018)