deposing to instructions from the Registrar of the Respondent that he is of the belief that subsequent to the date of these orders, the Applicant has failed to comply with one or more of the conditions set out in Annexure A

Order 8 July 2024 following admitted breach of undertaking

1. A considerable period of time then passed.
2. There was no sale of the Callister's Pharmacy business.
3. In mid-2024, in an email dated 7 June 2024, the applicant admitted that he had provided vaccinations at the Callister Pharmacy contrary to his undertaking to the Tribunal and to the Authority[43] under the Tribunal's earlier orders of 9 December 2022 made by then Member Tang.
4. Mr Tieu's email dated 7 June 2024 relevantly said: (emphasis added)

As ... the Victorian Pharmacy Authority (VPA) is now aware, on 4 June 2024, my registration was suspended by way of immediate action pursuant to section 156(1) of the National Law. I attach a copy of the correspondence from the Australian Health Practitioner Regulation Agency (AHPRA).

The suspension has arisen in part because I have been providing vaccinations at Callisters Pharmacy contrary to my undertaking to the Victorian Civil and Administrative Tribunal (VCAT).

I have been providing vaccinations contrary to my undertaking to VCAT, about 5-20 per week from December 2022. Customers kept asking ... and there was preference to use the pharmacy vaccination service, vaccination from local doctors was difficult to organise. I was under a lot of stress legally, financially and personally, and I made poor decisions.

As of Tuesday 4 June 2024, I have appointed [name removed] as pharmacist in charge at Callister's Pharmacy. I have commenced steps to sell the pharmacy. I will be abandoning my appeal in due course.

As I am unable to practice, I am unable to comply with my Undertaking in the Orders of 8 December 2022. I understand that the VPA is entitled to file an Affidavit with VCAT that will have the effect of revoking the Stay currently in place, which would mean that my licence to operate Callisters Pharmacy will no longer exist and the registration of the premises will also be revoked.

If the licence to operate the pharmacy and the registration of the premises do not exist, the value of Callisters Pharmacy will be reduced and it may make it difficult for me to sell the asset. I have a significant mortgage over Callisters Pharmacy, which I will default on if Callisters Pharmacy is unable to operate until I am able to sell the business.

I ask that the VPA gives me an opportunity to continue to hold the licence and registration of the premises whilst l complete the sale of the business.

As I am suspended, I cannot practice. The VPA, can take comfort from the fact that another pharmacist is operating the pharmacy who is not me.

I have attached a set of proposed Orders that I ask the VPA to consider agreeing to. I am happy discuss the precise wording and ... additional orders that would give the VPA further comfort if it is prepared to permit me time to sell the pharmacy and not take steps to revoke my licence until that can be completed.

1. As a result of his admitted breaches, by order dated 8 July 2024, the Tribunal revoked its earlier 9 December 2022 order that had stayed the Authority's decision as it related to the applicant's 'licence' to operate the pharmacy business, with effect from 21 June 2024.[44]
2. That 8 July 2024 order, again made by Senior Member Dea, stated as relevant:
   1. In circumstances where the applicant breached clause 5 of the undertaking given on 9 December 2022, under sections 50(3) and 50(5)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), and Order 1(c) of the Orders made on 9 December 2022, the stay of the respondent's decision of 1 March 2022, insofar as it concerns the applicant's licence to operate the pharmacy at 471 Glenferrie Road, Kooyong (known as Callister's Pharmacy) was revoked effective 21 June 2024.
   2. The proceeding is listed for an administrative mention on 22 July 2024. By that date the parties must write to VCAT (preferably jointly) with their proposals for further orders in the proceeding, noting correspondence which suggested the applicant may withdraw his application for review.
3. The effect of that order was that the applicant had no 'licence' to carry on a pharmacy business at the Callister's Pharmacy premises on and from 21 June 2024, however the Authority's decision as it related to the 'registration' of the pharmacy premises remained stayed under the Tribunal's earlier 9 December 2022 orders.

1. On 13 June 2024, prior to the 8 July 2024 order, through its solicitors the Authority had written to the applicant the following legal letter:[45]

We note that as matters stand, and notwithstanding the filing of [the 13 June 2024 Baker Affidavit], the VPA's decision of 1 March 2022 will presently remain stayed insofar as the decision concerns the registration of the pharmacy premises at 471 Glenferrie Road, Kooyong (known as Callister's Pharmacy), until the hearing and determination of this proceeding or further order.

Reserving all of the VPA's rights, if Mr Tieu can demonstrate by documentary evidence that he is taking immediate steps to dispose of his interests in Callister's Pharmacy, the VPA may be willing to permit the registration of premises to continue for the time being, to facilitate the sale. In that regard, we draw Mr Tieu's attention to section 6(1)(c) of the Act.

1. On 20 June 2024 Mr Tieu's solicitors had written back stating that their instructions were that Mr Tieu:[46]

has instructed Richard Gorman and Michael Clark of CFS Sales & Consulting to assist in the sale of Callister's Pharmacy,

that the VPA permit him time for the sale to be facilitated with the registration of the premises remaining undisturbed.

1. Following a request by the Authority for assurances that no pharmacy business would be carried on at the pharmacy premises, on 10 July 2024 the solicitors for the applicant wrote stating that their instructions were that:[47] (my emphasis)

Mr Tieu instructs that no pharmacy business is presently being carried on at Callister's Pharmacy by Mr Tieu or any other person, which will remain the case unless and until the VPA grants a licence.

1. On 25 October 2024, Ms Denise Van den Bosch attended the 'Callister's Pharmacy' in her role as a person authorised under s 65 of the Act to carry out functions and exercise powers under Part 4 of the Act.[48]

1. Ms Van den Bosch prepared a file note of her inspection that day and an 'evidence table' in which she records a sentence by sentence description of what had been said at the inspection, her observations, supporting evidence and comments.
2. Attached to her file note she include photographs taken by her during the inspection, and copies of documents obtained by her from Mr Tieu to which her evidence table refers.[49]
3. Her covering file note records (my emphasis):

I arrived at the front of Callister's Pharmacy at 1:05pm on Friday 25/10/2024.

I observed at the pharmacy entrance that one side of the roller doors was pulled down, leaving about a 20cm gap/opening at the bottom. I noted that the roller door position was the same as seen at my last visit on 23/10/2024.

There was also an opening/gap at the end of the roller door, which was just wide enough to walk through to access the front automatic glass doors.

I entered the pharmacy from the side opening/gap. The automatic front doors opened.

The interior lights were on and it appeared that the pharmacy was open for business. The shelves were seen to be well stocked.

Before reaching the service counter I noticed a cluster of display stands to my right and the counter was full of retail items.

The pharmacy did not appear to be in an organised state.

After identifying myself, I provided my VPA card to the pharmacist on duty, who I understood to be Mr Robert Tieu. Mr Tieu was wearing a name badge displaying the name Robert.

Mr Tieu confirmed that the premises was open for business and that the pharmacy was open.

In the dispensary, the benches were in a cluttered state. There were script baskets stacked up, piles of dispensed prescriptions, paperwork, postal packages and retail items covering the dispensary bench.

I noted that the dispensary shelves seemed to be stocked well. I did not see large gaps where prescription medications were missing.

I also noted that there was not much room to move as there were boxes and stock on the floor in and near the dispensary and behind the service counter.

Refer to table of evidence and attachments.

1. In her evidence table she made notes that she had observed:
   1. The pharmacy's dispensary program recorded that Mr Tieu had intermittently dispensed medications in the period between 1 June 2024 and 25 October 2024 (noting the error in the reporting software that incorrectly displays the date);
   2. Receipts for the period 19 October - 25 October 2024;
   3. No COVID vaccinations had been claimed by Mr Tieu through the Pharmacy Programs Administrator portal since 26 May 2024.
2. Although not given on oath nor subject to any cross examination in this interlocutory application, there is no reason for me to doubt that documentary evidence for the purposes of this interlocutory ruling.
3. While I will be circumspect in any factual findings I make from it because of the potential for prosecution under the Act, I do observe that an inference that may be open to be drawn from the evidence in the inspector's file note and her photos showing the roller door to the pharmacy entrance was down, but that customers could enter the pharmacy through the gap to the side of the closed roller door (like she had), is that the visual impression that was intended to be created to a passerby was that a pharmacy business was not actually operating from the premises.
4. The attached photocopies of register sales receipts (document 1) and till end day total reports marked 'z reports' and 'x reports' (documents 4) and workload statistics reports (documents 2, 3, 5 and 6) are also evidence consistent with a pharmacy business being conducted from the 'Callister's Pharmacy' premises both before and after 21 June 2024.
   1. Document 2, for example, lists 'scripts per hour' dispensed during the period 21 June 2024 to 24 October 2024 and shows total scripts of 3821 and a daily average of 57 scripts per day.
   2. Document 3 (for the period 21 June 2024 - 24 October 2024) and documents 5 and 6 (for the period 1 June 2024 - 20 June 2024) break down the information by 'user', namely by the dispensing pharmacists (of which many are recorded in each of the periods of the reports).
5. The photographs taken by the inspector inside and outside the 'Callister's Pharmacy' premises on the day of the inspection are additional evidence. The photos of:
   1. a salesperson at the dispensary computer (photos 9 and 15);
   2. vaccination entries for CVCP on a computer screen (photo 18);
   3. scripts and baskets of scripts (photos 5 - 6, and 9 - 11),
   4. customers inside the premises (photos 8, 15, 16 and 17);
   5. medicines on shelves (photos 7 - 8, 10 and 17);
   6. medicines on counters (photo 9 and 11);
   7. a customer outside the premises holding medicine (photo 3);
   8. a member of the public entering the premises through the gap at the side of the roller door (photos 19 - 21);

are all also consistent with a pharmacy business being conducted from the 'Callister's Pharmacy' premises on the date of those photos.

1. On 28 October 2024, an officer of the Victorian Department of Health provided an email attaching a document titled "28OCT24 Dispensing records for Callisters Pharmacy.xlsx" to Mr Aaron Bawden, Registrar of the respondent. [50]
2. The content of the xlsx spreadsheet records 'dispensing events captured by SafeScript between 21 JUN 2024 and 27 OCT 2024' ('SafeScript data'). [51]
3. SafeScript is a monitoring tool used to provide a health practitioner information about a patient's prescription history for certain high-risk medicines (such as opioids) to support safer clinical decision-making.[52]
4. Mr Cozens submitted that it was important to note that the information in this SafeScript data spreadsheet from the department is not a record of all medicines dispensed by the pharmacy during the period but only a record of those that are deemed to be 'high-risk'. This can be seen from the names of the medicines themselves, which include many well-known prescription drugs, such as codeine, tramadol (an opioid medicine) and oxycodone (a semisynthetic opioid agonist medication), to name a few.
5. The SafeScript data shows that during the period 21 June to 27 October 2024:
   1. Mr Tieu was logged as dispensing these high-risk medicines at the premises following the revocation of his licence up until 27 October 2024;
   2. other pharmacists were logged as dispensing these high-risk medicines at the premises throughout the reporting period; and
   3. no dispensing events were logged on SafeScript between (inclusive) 10 July and 23 July 2024.

1. I have summarised earlier, the regulatory context of the Authority's current application before me, for orders lifting the extant stay of its 1 March 2021 decision (as previously ordered by the Tribunal on 13 October 2022). I accept that the characterisation given by the Authority to Mr Tieu in its letter dated 10 March 2022, of the legal effect of its 1 March 2022 decision to revoke registration of the pharmacy premises - known as 'Callister's Pharmacy' at 471 Glenferrie Road, Kooyong 3144 - and licence to carry on a pharmacy business from that premises is accurate. Its regulatory decision meant that:

the premises registration and [Mr Tieu's] licence [was] revoked effective at midnight on 10 April 2022. It [would] be unlawful for a person to carry on a pharmacy business at the ... premises from 11 April 2022.

Accordingly, after the Authority's decision came into effect at midnight on 10 April 2022, unless stayed by an order of the Tribunal, it was 'unlawful' under the Act for Mr Tieu or any person to conduct a pharmacy business from the 'Callister's Pharmacy' premises from 11 April 2022, when that premises would no longer be registered as a pharmacy under the Act from which a pharmacy business could be lawfully conducted.

1. It is relevant to the Authority's application for orders lifting the extant stay, that there have been breaches admitted by Mr Tieu of prior undertakings given by him to both the Authority and the Tribunal as conditions of orders made by the Tribunal granting him a stay not to and not to permit anyone at the premises to administer any vaccination.
2. It is relevant that if the statements in Ms Van den Bosch's file note describing her recent inspection at 'Callister's Pharmacy' are ultimately accepted at final hearing, then it is likely that Mr Tieu will be found to have engaged in the conduct to which I have referred, showing inter alia non-compliance with licence conditions and that a pharmacy business was being unlawfully conducted at the premises, something which was also contrary to the statement Mr Tieu had instructed his solicitor to communicate in writing to the Authority on 10 July 2024 (when it had sought that assurance from him) that 'no pharmacy business is presently being carried on at Callister's Pharmacy by Mr Tieu or any other person, which will remain the case unless and until the VPA grants a licence'. It also appears from the dispensing evidence contained in material recently filed with the Tribunal by the Authority that a pharmacy business was being conducted up until 9 July 2024, with that business stopping on 10 July, and subsequently resuming on 23 July 2024.
3. It is relevant that the SafeScript Data records provided by the Victorian Department of Health on 28 October 2024 also shows that high-risk medications were logged as being dispensed after Mr Tieu's licence had been revoked, up until 27 October 2024.
4. Also relevant is s 34 of the Act which prohibits the use of the title 'pharmacy' except in relation to a pharmacy or pharmacy business to which a licence applies. The photos show the words 'pharmacy' visible at the front of the premises.
5. I am more than satisfied that in these circumstances the Tribunal's extant order staying the operation of the Authority's decision should be lifted immediately.
6. I accept the Authority's written and the oral submissions of its Counsel that were pressed before me on each of the factors which are relevant to the discretion whether to grant or lift a stay.
7. Specifically, I accept the following.

(a) Whether the application for review would be rendered nugatory?

1. This consideration is the first and dominant consideration.[53]
2. Whether or not the 'registration' of the pharmacy premises remains, Mr Tieu is prohibited by law from carrying on the pharmacy business at the premises on and from 21 June 2024, because he holds no licence: see Pharmacy Regulation Act 2010 (Vic), s 21.
3. Thus, revocation of the extant stay order would not render Mr Tieu's review application nugatory. He cannot lawfully carry on a pharmacy business from the pharmacy premises in any event.

(b) Whether there is a serious question to be tried on the review?

1. It is incumbent on the Tribunal in determining whether to permit a stay to ascertain whether there is a serious question to be tried on the review.[54]
2. This factor is 'a matter of some importance'.[55]
3. I accept the Authority's submissions that Mr Tieu:

1. has never articulated reasons in this proceeding why the correct or preferable decision would be to reinstate his licence to conduct a pharmacy business or registration of the pharmacy; 2. has conducted himself in such a manner as to cause Member Tang (as the Senior Member then was) to revoke a previous stay order on 13 October 2022 on application by the Authority; and

1. was given a further chance, by a subsequent stay order made 9 December 2022 (after he engaged Meridian Lawyers), to operate the pharmacy business subject to conditions and a mentoring plan, but was discovered to have breached those conditions (and his undertaking to the Tribunal and the Respondent) by administering vaccinations at the Callister's Pharmacy premises, resulting in the Authority's revocation of his licence to conduct a pharmacy business coming into effect from 21 June 2024.[56]
2. I accept that the likely merits of his review application to the Tribunal have only worsened since then.
3. Another factor, too, is that on 4 June 2024, his registration was suspended by way of immediate action pursuant to section 156(1) of the National Law.
4. While the test for whether there is a 'serious issue to be tried' must be considered in the context of the 'issue to be tried' in a given legal proceeding, and in expressing no concluded view on the ultimate merits of the review application, it can easily be said that on the material currently before the Tribunal that it borders on highly improbable that Mr Tieu's review application will succeed at final hearing, either in relation to the revocation of his 'licence' to conduct a pharmacy business or the 'registration' of the pharmacy premises.

Stay applications are usually brought by review applicants who wish to continue to trade pending a final hearing. Understandably, there is a predilection in stay proceedings not to put people out of business until those people have had the opportunity to prosecute their review applications. Conversely, authorities in the Tribunal also establish that the public interest in maintaining standards in trades and professions may predominate and may overwhelm any prima facie predilection to grant a stay.[57]

In this unusual case, there is no prejudice to [Mr Tieu] in the revocation of his registration being carried into effect in the sense that he is unable to lawfully trade in either case.

1. That is a measured observation in this case.
2. In this case, there is a real public health and safety element involved in protecting the public from a not insubstantial the risk of practitioners flouting regulatory requirements. On the materials presently before the Tribunal, an inference that may be drawn from the closure of the roller door but with access possible through the side, is that this was done to avoid detection of a pharmacy business operating from the premises without a licence.
3. There is also a professional education element in this case, where the records recently produced to the Tribunal from the Authority's inspector and by the department also record that other practitioners have been dispensing medicines, including high-risk medicines in a pharmacy business that is currently unlicenced.
4. The Authority submits further:

The only arguable prejudice would appear to be that the market value of the (unlicensed) business might be depressed if the revocation of registration is carried into effect.

The Authority does not accept that is so, and there is no evidence on the subject. The Authority's forensic decision to exclude registration of the premises from its 2022 stay revocation application does not bind it here.

If any prejudice to Mr Tieu is established, then as a matter of discretion, the Tribunal ought to give it low weight, given Mr Tieu's repeated and calculated evasion of his undertakings and statutory obligations.

1. The Authority's previous beneficence, no doubt intended to take into consideration that Mr Tieu was not unduly prejudiced by its revocation decision in March 2022 while his application for review of its decision is before the Tribunal, cannot be held against it. Having given Mr Tieu a number of chances, it is not compelled to give him a further chance. Nor should it.
2. I accept that little weight should be given to potential prejudice to Mr Tieu's business interests in this case. It is part of doing business as a pharmacist, and of conducting a pharmacy business in Victoria, that compliance with the law and the regulatory requirements imposed by the Act occurs.
3. There has been no buyer of the Mr Tieu's pharmacy business despite the not inconsiderable - if not long-suffering - accommodations provided by the Authority during this Tribunal proceeding.
4. There is also no evidence of any buyer for Mr Tieu's pharmacy business, in the near or even foreseeable future.
5. While Mr Tieu wrote in on the morning of the hearing to say he did not oppose the stay being lifted, the Authority is entitled to a determination of its interlocutory application on its merits.
6. Without Mr Tieu's belated consent, I would have lifted the stay in any event. With that consent, it serves to show that there may now be little prospect that he intends to continue with his review application before the Tribunal, which underscores the lack of prejudice to him by lifting the stay.

(d) Whether it is in the community or public interest to grant a stay?

1. I return to a matter I have just mentioned.
2. The Authority submits its reason for bringing this interlocutory application to lift the extant stay of its March 2022 decision 'is protection of the public interest in avoiding risks to health'.
3. It submits:

1. Mr Tieu's history of noncompliance with applicable professional standards, which led to the decision to revoke his licence and registration the subject of the proceeding;
2. Mr Tieu's history of non-compliance with undertakings given to, and orders of, the Tribunal;
3. Mr Tieu's flouting of the Act and the 8 July 2024 Orders of Senior Member Dea by trading his pharmacy business unlicensed;
4. the apparent involvement of other pharmacists in dispensing at the Premises since 21 June 2024 as revealed by the SafeScript data; and
5. s 29 of the Act,[58] which may lead other registered pharmacists to adopt the view that they may lawfully dispense medicines from the premises, so long as it remains a registered pharmacy premises.

1. I accept this as a fair characterisation of the apparent risks to the public.
2. The Authority submits:

It is respectfully submitted that the Tribunal ought not give any encouragement to Mr Tieu to carry on unlawful trading by permitting the registration of the premises to remain in place.

If the Tribunal grants [the Authority's] interlocutory application [to lift the stay] and the registration is revoked, the Authority will be able to publish that fact on its website to the public at large and communicate the revocation of the premises registration to individual pharmacists who appear to have been involved in dispensing activity at the premises.

1. I accept that submission. There is a public interest served in the publication of the Authority's regulatory decisions. It is one thing to protect the legitimate interests of a person making application for review of a regulatory decision pending the Tribunal's hearing and determination of the review. It is quite another thing to permit - and, in so doing, risk encouraging - a person to continue the conduct of a regulated business in breach of the law and of conditions and requirements under Tribunal orders. There is a public health risk to be avoided too, in discouraging other pharmacy practitioners behaving in such a way. There may also be a reputational risk for the pharmacy profession itself, if such conduct is seen to be allowed to continue unchecked by the Authority in a case such as this.
2. The Authority submits finally:

It is worth noting that the Authority's enforcement 'toolkit' under the Act includes a power to prosecute a person for carrying on a pharmacy business without a licence or registration of premises, but it does not include a power to take possession of premises or restrain an unlicensed person who is not a registered pharmacist from attending at a premises: see s 31 of the Act.[59]

1. That, to my mind, is not a relevant consideration, or if it is relevant in the exercise of the Tribunal's power to order or lift a stay, it is of marginal weight, at least in this case. The absence of regulatory power to do something that may be required in the regulation of a regulated industry or profession is, rather, a matter for legislative amendment.

(d) How long it will be before the application for review can be heard?

1. In a case like this, this element has little weight. The Authority simply notes that the proceeding has not been listed for final hearing and when it will be heard is not known.
2. The orders I have made are to bring this case on for final hearing as soon as possible. What is unknown is whether the applicant for review, Mr Tieu now intends to continue with his application. Current pointers are in the direction that he will not.

1. In a given case:
   1. the extent to which the applicant for review has an incentive not to engage in further inappropriate behaviour for the duration of the proceeding;[60] and
   2. the relevant behaviour of the applicant for review, can be relevant.[61]
2. The Authority submits in this case:

Even if Mr Tieu were able to lawfully trade going forward, his relevant behaviour referred to above would give no reason to the Tribunal to place any trust in him not to engage in further inappropriate conduct

1. Based on the evidence submitted by the Authority, I agree.

Order 2(a) of the Orders of Member Tang dated 13 October 2022 be vacated such that the stay of the respondent's decision of 1 March 2022, insofar as it concerns the registration of premises at 471 Glenferrie Road, Kooyong (known as Callister's Pharmacy) is revoked effective immediately.

1. At the hearing on 15 November 2024, I made orders to that effect, and revoked the operation of any and all orders by the Tribunal that stayed the Authority's decision of 1 March 2022.
2. I also made timetabling directions for filing of evidence before a final hearing of the review application to be set down in 2025 and reserved costs.

[1] Act s 1. The Act established the Victorian Pharmacy Authority, to take over the role of regulating pharmacies previously performed by the Pharmacy Board under the Health Professions Registration Act 2005 (Vic).

[2] Health Practitioner National Law (Victoria) Act 2009 (Vic).

1. [4] Although the word 'premises' is not defined in the Act, has its ordinary English meanings, per the Cambridge Dictionary as: a house or other building and the land on which it is built; the buildings and land owned or used by someone, especially by company or organization.

[5] By s 3: proprietary interest means a legal or beneficial interest and includes a proprietary interest as a sole proprietor, as a partner, as a director, member or shareholder of a company and as the trustee or beneficiary of a trust.

Under s 5, persons who may own or have an interest in a pharmacy business, include a registered pharmacist, a company owned and controlled by registered pharmacists and other companies who have the structure of a friendly society or mutual company that meet the requirements of s 5.

[6] The operation of the Act must be read with s 10 which stipulates:

Each pharmacy business carried on at separate premises including a pharmacy business carried on by the same person or under the same name as another pharmacy business is to be treated as a separate pharmacy business for the purposes of this Act.

[7] See https://www.health.vic.gov.au/drugs-and-poisons/pharmacists.

[8] See https://pharmacy.vic.gov.au/standard-guidelines/

[9] Victoria Government Gazette, No G 19, 12 May 2022, 2435-2440. The Standards are published by the Authority at https://pharmacy.vic.gov.au/wordpress/wp-content/uploads/2024/03/VPA-Standards_FINAL_20220707.pdf.

1. [10] This point is important when I come to discuss the evidence before me on this interlocutory application.

Pharmacy services includes the supply, compounding and dispensing of medicines, the provision of advice and counselling on the effective and safe use of medicines and a wider range of specific pharmacy services to support these functions, including those which may emerge as practice evolves, such as, but not limited to:

• medication assisted treatment for opioid dependence (MATOD)

Registered premises refers to pharmacies, pharmacy departments or pharmacy depots, as defined under the Act, which are registered by the Authority.

[12] TB3: Letter from the Authority to Mr Minh-Tri Robert Tieu dated 10 March 2022 sent to him by email.

[13] See generally Pizer's Annotated VCAT Act, 7th ed (Thomson Reuters) (Pizer), [VCAT.51.40] - [VCAT.51.120].

[14] BFK v Victims of Crime Assistance Tribunal [2017] VSC 736 at [21] (Macauley J).

[15] Citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd. (1986) 162 CLR 24 at 39-40 per Mason J (as he then was): What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute confirming the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the Court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.

1. [16] Applied by Justice T Forrest in Dawson v Greyhound Racing Victoria [2017] VSC 123 at [28] (emphasising the last sentence in that case).
2. [17] See Freeman v The Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342 applied Justice T Forrest in Dawson v Greyhound Racing Victoria [2017] VSC 123 at [26]-[27].

[18] Citing HBF at 234 with approval.

[19] Freeman v The Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.

[20] That case concerned a case of entitlement to a pension. In the passage cited Kiefel J had continued:

His Honour held the Tribunal to have been correct to limit its consideration to the circumstances existing at the time the decision to cancel (the applicant's pension) was made. The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow's pension at the date of the Tribunal's decision.

Thus, pension entitlement at a particular past point in time was the 'decision under review' in that case, not whether at a different date the applicant might now have an entitlement to a pension (which would require a separate administrative decision). The decision highlights the need to pay careful and close attention to the context and the nature of the administrative decision under review. Statutory entitlement to receipt of a pension operates in an ambulatory way which changes from time to time depending on an individual's circumstances (such as a person's other income or whether they may be in a domestic relationship).

1. [21] Which is to say under Pharmacy Regulation Act 2010, the Tribunal is not confined only to the grounds in s 55(c) (in respect to revocation of the licence to operate the pharmacy business from the pharmacy) or ss 56(b), 56(e) (in respect to revocation of the registration of the premises) of the (Act). Other grounds submitted by the Authority as relevant to the question whether the licence or registration should be revoked can be taken into account if the Authority wishes to raise other grounds.

[22] This includes facts that were not originally before the Authority. See Pizer at [51.100].

[23] Pizer [VCAT.51.40] p 183, point 9 appears to be an example of an exception..

[24] As opposed to 'judicial review' by a superior court for jurisdictional error by a decision maker.

[25] Authority's note of submissions dated 15 November 2024, para 7 - 8.

[26] Aavelaid v Dental Practice Board of Victoria [2002] VCAT 1763 (Macnamara DP).

[27] Hedger v Private Agents Registry (unreported, VCAT, Levine DP, 11 May 2000) at [7].

[28] Bell v Liquor Licensing Victoria [2000] VCAT 214 (Kellam J sitting as President) (Bell) at [12].

[33] Volziker v Secretary of the Department of Transport [2012] VCAT 402 at [8] (Judge Macnamara, Vice President).

[34] HUD v Secretary to the Department of Justice [2013] VCAT 331 at [108] (HUD) (Judge Jenkins, Vice President).

[35] I note for completeness, that in making a stay 'order' under s 50(3) of the VCAT Act, s 50(5) also provides that VCAT may also require a party to give an 'undertaking' as to costs or damages. Section s 130 also provides a separate head of power, providing that VCAT may make an order or decision 'subject to any conditions or further orders that the Tribunal thinks fit', including '(b) an order for costs'.

[36] See also PUW v Secretary to the Department of Justice [2013] VCAT 179 at [3], [49]-[50]; Espedido v Physiotherapy Board of Australia [2017] VCAT 1401 at [37]; Shvetsova v Medical Board of Australia [2018] VCAT 867.

[39] Supported by affidavits of Carole Timmins sworn 16 September 2022 and 21 September 2022 (Second Timmins Affidavit).

[40] Its reasons for adopting that course were set out in para 7 of the Second Timmins Affidavit on information and belief (from instructions provided by the Registrar for the Authority) as follows:

1. in respect of the license to carry on the pharmacy business, consistent with [its] past practice, the [Authority] will require any purchaser of Mr Tieu's business to apply for, and be granted, a new licence to carry on a pharmacy business at the premises. That is, whatever the outcome in this [VCAT] proceeding, the existing licence cannot be simply "transferred" to the new business owner so as to permit lawful operation of the pharmacy business pursuant to that licence;
2. revocation of Mr Tieu's licence (and lifting the stay in relation to same) will not change the fact that any purchaser will be required to apply for a new licence;
3. in respect of the [pharmacy] premises registration, under ordinary circumstances in the past (i.e. where the premises registration has not been revoked), upon a transfer of a pharmacy business from one licensee to a new licensee, the [Authority] has previously permitted existing [pharmacy] premises registrations to remain in place, without in each case requiring a fresh application for premises registration by the new licensee. That is, under ordinary circumstances, a [pharmacy] premises registration may effectively "carry over" to the new approved licensee operating the pharmacy business at the premises;
4. the [Authority] is content for [its application to lift VCAT's stay order] to be conducted on the basis that revocation of the [pharmacy] premises registration (and the lifting of the stay order in relation to same) may make Mr Tieu's business more difficult to sell;
5. to address potential prejudice in this regard arising from the lifting of the stay order, the [Authority] would be amenable to the Tribunal making an order ... to the effect that the stay order is preserved in respect of the [Authority's] decision to revoke the [pharmacy] premises registration.

[43] See Affidavit of Anupama Baker dated 13 June 2024 at [3]-[6] and exhibit AB-1.

1. [44] It was worded in that way was because in her earlier Order dated 9 December 2022 (as mentioned) it that provided that a breach of any undertaking in Annexure A brought about a 'self-executing' revocation of the stay 'order' 7 days after the filing and service of an affidavit satisfying the criteria para 1(c).

[45] Affidavit of Anupama Baker dated 13 June 2024, exhibit AB-4 at 1-2.

[46] Affidavit of Anupama Baker dated 13 June 2024, exhibit AB-4 at 3-9.

[48] Affidavit of Anupama Baker dated 1 November 2024, para 24 (on information and belief).

[49] Affidavit of Anupama Baker dated 1 November 2024, para 25, Exhibit AB-4 p 10-64.

[50] Affidavit of Anupama Baker dated 1 November 2024, para 26-7, Exhibit AB-4 p 65-66.

[51] Affidavit of Anupama Baker dated 1 November 2024, para 25, Exhibit AB-4 p 67-70.

[52] See https://www.health.nsw.gov.au/pharmaceutical/safescript/consumers/Pages/default.aspx.

1. [56] I note it was also put that he has stated by the 7 June 2024 letter that he would be abandoning his application. That is a matter for him and of lesser weight in this interlocutory application than the other matters relied on.

[57] AZD v Secretary to the Department of Justice [2009] VCAT 977 (Macnamara DP) at [15].

[58] Noting s 29 Controls over the supply, compounding or dispensing of medicines, which relevantly provides:

_(1) A registered pharmacist must not supply, compound or dispense medicines except - _

(a) from the premises of a pharmacy business or pharmacy department registered by the Authority; or

(b) in any other special circumstances that are approved by the Authority in a particular case.

[59] Noting s 31, Access to closed pharmacies and pharmacy departments, which states:

(1) The registered pharmacist who is regularly and usually in charge of a pharmacy and the person licensed to carry on the pharmacy business must not allow a person to have access to that pharmacy when it is not open for business unless a registered pharmacist is present.

(2) The registered pharmacist who is regularly and usually in charge of a pharmacy department and the person licensed to carry on the pharmacy department must not allow a person to have access to that pharmacy department when it is not open for providing pharmacy services unless a registered pharmacist is present.

[60] Volziker v Secretary of the Department of Transport [2012] VCAT 402 at [8] (Judge Macnamara, Vice President).