Attia and Anor and Australian Community Pharmacy Authority - [2004] AATA 746

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 746

ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/252

GENERAL ADMINISTRATIVE DIVISION )

RE MINA ATTIA and ANAREN HANNA
Applicants

AND AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondents

DECISION

Tribunal

Mr G A Mowbray

Date16 July 2004
PlaceCanberra
DecisionThe Tribunal affirms the reviewable decision of 20 June 2003 of the Australian Community Pharmacy Authority.

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Member

CATCHWORDS

PHARAMCEUTICAL BENEFITS – transfer of existing pharmaceutical benefits approval – no approval – large shopping centre – shopping complex – single management – decision affirmed

National Health Act 1953 sections 90, 99K, 99L, 105AD

Consolidated Rules : Determinations PB 8 of 2000, PB 13 of 2000, PB 9 of 2002 and PB 15 of 2002

Re Singh and Australian Community Pharmacy Authority [1999] AATA 531; (1999) 56 ALD 582

REASONS FOR DECISION

16 July 2004

Mr G A Mowbray

Summary

Messrs Attia and Hanna, the Applicants in this matter, are pharmacists registered in New South Wales. They wish to relocate an existing Pharmaceutical Benefits Approval (Number 10995Q) from Narooma Plaza, Narooma, NSW to the ShopSmart Outlet Centre (ShopSmart) located in Mount Druitt, NSW. They had the permission of Mr David Morgan the owner of the Pharmaceutical Benefits Approval to do so.
ShopSmart is an “outlet” shopping centre, specialising in factory outlets and discount stores. The developers, Stocklands Retail Projects (Stocklands), described ShopSmart in a promotional brochure as a “larger discount shopping precinct spread over almost 5 hectares”. Messrs Attia and Hanna have leased premises in the ShopSmart Centre with a view to distributing pharmaceutical goods under the Pharmaceutical Benefits Scheme.
Stocklands originally owned land from the Mount Druitt Hospital to the Mount Druitt Town Centre Reserve, to a corner of Zoë Place opposite an existing The Warehouse shop. It incorporated two existing buildings, formerly the Luxford Court Shopping Centre and another building which now bears the name of Luxford Court, as well as car parking facilities. In 2002 Stocklands sold some of the former car parking space to ALDI, a discount supermarket chain, on which ALDI built a supermarket and more car parking spaces. The building now known as Luxford Court was to be sold to another developer one week after the hearing, but Knight Frank, manager of ShopSmart, will retain management rights.
This matter’s history can be summarised as follows

on 8 May 2003 Messrs Attia and Hanna applied to the Health Insurance Commission for approval to transfer the Pharmaceutical Benefits Approval to premises which they had leased in ShopSmart
the Health Insurance Commission received the application on 12 May 2003
on 19 May 2003 a delegate of the Secretary of the Department of Health and Ageing referred the application to the Australian Community Pharmacy Authority, the Respondent, for determination
on 20 June 2003 the Authority determined that the application did not meet the requirements of rule 7 of the Determination PB 8 of 2000, as amended by PB 13 of 2000, PB 9 of 2002 and PB 15 of 2002 (the rules)
in a report to the delegate of the Secretary dated 24 June 2003 the Authority recommended that the application not be approved
on 30 June 2003 Mr Attia and Mr Hanna applied to this Tribunal for review of the Authority’s decision.

As noted in the previous paragraph the Authority decided that the application did not meet rule 7(a)(i) made under section 99L of the National Health Act 1953 (the Act). The Authority refused Messrs Attia and Hanna’s application because it was not satisfied that

ShopSmart complied with the definition of “large shopping centre” in rule 2
ShopSmart was a shopping complex (including a supermarket) under a single management.

This Tribunal has the authority to review that decision pursuant to section 105AD(2)(a) of the Act. As I am not satisfied that the shopping complex is under a single management I have decided to affirm the decision of the Authority that the ShopSmart/ALDI arena is not a large shopping centre for the purposes of rules 2 and 7.

Relevant Legislation and Rules

Pursuant to section 99K(1)(b)(i) of the Act, the Authority has the power to make recommendations to the Secretary of the Department of Health and Ageing as to “whether or not the applicant should be approved under … section [90] in respect of particular premises”. Section 90 provides
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.
…
(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.
…

(6) For the purposes of this section, a reference to a pharmacist is taken to include a reference to a person who owns, or is about to own, a business for the supply of pharmaceutical benefits at or from particular premises.

Section 99K(2) provides “In making a recommendation under subsection (1), the Authority must comply with the relevant rules determined by the Minister under section 99L”.
The rules made under section 99L relevantly provide
2.…
“large shopping centre” means a shopping complex, under a single management, that:
(a)is an aggregation of discrete commercial establishments and associated facilities; and
(b)has a total gross leasable area of not less than 5,000 square metres; and
(c)includes a supermarket that occupies not less than 1,000 square metres, and not less than 30 other commercial establishments operating independently of one another; and
(d)has customer parking facilities provided within the shopping complex.
…
7.Subject to paragraphs 8 and 9, approval of a pharmacist (“the applicant”) under section 90 of the Act in respect of particular premises must be recommended if the applicant has a legal right to occupy those premises for the purpose of operating a pharmacy, and the Authority is satisfied that …
…
(ab) another pharmacist
(i)is approved under section 90 of the Act in respect of other premises and that pharmacist has agreed that that approval will be cancelled immediately before the approval under consideration, if granted, takes effect;
…
and … the following circumstance … applies:
(a)the premises in respect of which approval is sought are situated in a large shopping centre, provided that
(i)if the shopping centre contains not more than 99 commercial establishments (including the premises in respect of which approval is sought), there are not already any premises in the shopping centre in respect of which a pharmacist is approved under section 90 of the Act …

Issues

The broad issue before the Tribunal concerns whether Mr Attia and Mr Hanna’s pharmacy proposing to distribute pharmaceutical benefits is a pharmacy that meets the requirements of rule 7 of the Determination.
Both parties agree that

Messrs Attia and Hanna have the legal right to occupy their premises in ShopSmart
Mr Morgan, the pharmacist who held the approval previously, has agreed that the approval will be cancelled if approval is granted to Messrs Attia and Hanna. Indeed the approval has been deactivated since December 2001
there is no other pharmacy in the ShopSmart Centre
the objections by other pharmacists to the original application are no longer relevant
the shopping centre contains an aggregation of different shops operating independently as discrete commercial establishments
the shopping centre contains 9,223 square metres of floor space
the ALDI supermarket has 1,335 square metres of floor space
there are at least 30 shops operating in ShopSmart
there is customer car parking in the shopping area.

The Authority contends that all the elements of rules 2 and 7 are met, with the exception of rule 7(a)(i). The chapeau in rule 2 is not satisfied. The shopping area including ShopSmart and ALDI is not a shopping complex under a single management.
The specific issues in this case are therefore

what constitutes the shopping complex for the purposes of the rules
if there is a shopping complex, is it under single management.

What Constitutes the Shopping Complex

In 2002 Stocklands sold land to ALDI on which ALDI built a supermarket. The ShopSmart facilities are managed by Knight Frank as agents for Stocklands. ALDI supermarket manages its own premises. The complex is designed, however, so that people park either in the ALDI car park or the Stocklands/ShopSmart car park and shop at both facilities. Signs for ALDI are positioned on Stocklands owned land and the arena contains easements for pedestrians and motor vehicles wishing to go from one building to another.
In an affidavit sworn on 25 March 2004 Mr Wayne Davey, current Centre Manager of the ShopSmart Centre Management, stated that while the ShopSmart area is owned by Stocklands and the supermarket is owned by ALDI, the complex is integrated by the way the customers use the sites. He said that Stocklands cleaners regularly clean the ALDI site. Similarly he said that
[t]he lighting was “overdesigned” by Stocklands by which I mean that, for reasons of security of the site and its customers, the lighting provides a benefit to the ALDI site in addition to the Stocklands site.

Although ShopSmart has general working hours that are different to those of ALDI, some shops in ShopSmart maintain ALDI hours.

Further in his affidavit, Mr Davey said
The site was designed as an integrated shopping centre to provide a “one stop shop” for customers. My day to day responsibilities involve regularly walking around the site and in doing so I observe the habits of customers to the site.
From my observations, which have been conducted involving shoppers to the site, shoppers who arrive by car park in one of the 3 car park areas, visit the ALDI supermarket for their general groceries, walk across the ALDI site to the Luxford Court area to the butcher, fruit shop and the bread shop and then visit the ShopSmart Centre. There are also coffee shops and cafes located in the Luxford Court area and the ShopSmart area. There are also pedestrian visitors to the site from the Mount Druitt Hospital which is located adjacent to the site. The lay out and design of the centre, together with the mix of occupiers, are designed so that each area complements each other and so that there is a benefit to the shops in one area from shops in another area.
…
… There is no distinction between car parks in terms of their signage or general appearance. There are no restrictions in any of the car parks as to the customers who can use the car parks and there are no time restrictions in any of the car parks. The car parks are connected by a series of ramps and are designed in such a way as to be an integrated car parking area.
On 23 October 2002 Mr Con Stavropoulos, Leasing Manager in Retail Services of Knight Frank, had written to the Authority in terms which concurred with Mr Davey’s perception of the shopping arena
Stockland Retail Projects purchased the entire site, with a vision to redevelop the shopping precinct to provide a comprehensive and co-ordinated shopping experience for the general community.
As a result, the existing centre has been refurbished and extended to accommodate some 50 retail tenancies. A block was sold to ALDI for development of their supermarket concept and the Blockbuster video retail store is been [sic] redeveloped to accommodate a bakery and fruit and vegetable market to accompany both Blockbuster and the existing pizza takeaway and restaurant. …
Stockland Retail Projects have retained ownership and management of both the new Shopsmart Outlet Shopping Centre and the Blockbuster retail strip, whilst ALDI have ownership of the supermarket.
Messrs Attia and Hanna relied on ReSingh and Australian Community Pharmacy Authority [1999] AATA 531; (1999) 56 ALD 582 to support its view that the ShopSmart/ALDI arena was a shopping complex for the purposes of the rules. In Singh the Tribunal’s decision was based upon the rules which preceded the current Determination. Nonetheless the pertinent rules were very similar. They still contained the phrase “under a single management”. However, Singh did not turn on whether there was a single management. It was accepted that there was. The question was whether there was a shopping centre, given that some of the buildings were spread out and not attached to each other.
The Tribunal said
61.In considering whether or not the four tenancies are part of Brookside and so part of a large shopping centre, it seems to us that the first question is not whether they are located on a “contiguous site under a single management or developer” but what is it that amounts to a “shopping centre”. The definition is structured so that features such as contiguity only become relevant if there is first a shopping centre. That is so because those features identify the type of shopping centre which is a large shopping centre for the purposes of the Rules
62.As the expression “shopping centre” is not defined in the Rules, we have had regard to its ordinary meaning as reflected in dictionary definitions:
“… shopping centre an area or complex of shops …” (The New Shorter Oxford English Dictionary, 1993); and
“shopping centre … 1. That part of a town or suburb where shops are most densely concentrated. 2. Ü shopping complex.” (The Macquarie Dictionary, 3^rd edition, 1997)
63.The definition of “shopping centre” should be compared with those of the expression “shopping complex” and “shoppingtown” in the Macquarie Dictionary:
“shopping complex … a group of many shops and associated facilities within a single architectural plan. Also, shopping mall, shopping centre.”
“shopping town …Ü shopping complex. [Trade-mark]”
…
66. It would seem from the dictionary meanings of the expression “shopping centre” that it may equally apply to either a group of shops which are concentrated in a particular area or to a group of shops and associated facilities within a single architectural plan. Taking the second meaning first, we do not consider that this means that the shops must be concentrated within a single building. Certainly, architecture is the “… art or science of building …” or “… something built” (The New Shorter Oxford English Dictionary, 1993) but it seems to us that “architectural area” introduces notions of the location and surroundings, be they buildings or aspects of topography, in which a building is erected. Those notions are certainly inherent in the expression “architectural interest” as is apparent from the judgement of Megaw J in Iveagh (Earl) v Minister of Housing and Local Government [1961] 3 All ER 98 at 103. Taking these notions into account, we have formed the view that, in its ordinary meaning, a shopping centre may refer to a group of shops and associated facilities which are located within a single area, be it in a building or in a set of buildings, which can be described as being located according to an architectural plan.
67.It is not essential to a finding that a group of shops forms a shopping centre that they have any common ownership or trade or promote themselves under any common banner. That is not essential whether they do so because they come within the first or second of the ordinary meanings of “shopping centre”
In Singh the main shopping centre was called Brookside, but it was surrounded by Sizzlers, Mitre 10 and McDonalds. These premises had distinct parking areas, were separated by a narrow road on which the speed for vehicles was reduced, but were described as existing in an “ordered environment.” They had different opening hours from the main shopping centre but people still relied on their parking spaces for shopping in the main centre and vice versa.
In the present matter ALDI, Luxford Court and ShopSmart are separate buildings, unattached except by streets, car parks and ramps. There is a speed limit of 10 kilometres per hour that is enforced within the entire arena, including the ALDI owned car parks and the Stocklands owned car parks. There are easements between the buildings and common rights of way. ALDI’s opening hours are different from those at ShopSmart although some of the ShopSmart shops on the exterior of the building maintained similar opening hours to those of ALDI. Mr Stavropoulos said in his letter dated 23 October 2002 to the Authority that
We [Knight Frank on behalf of Stocklands] wish to stress that the entire precinct (Blockbuster, ALDI Supermarket and Shopsmart Outlet Shopping Centre) is [an] integrated entity with no physical boundaries and a common communal parking area. The precinct has been designed to encourage cross trading and provide shoppers with a central location for all their requirements.
Mr Burley, counsel for Messrs Attia and Hanna, submitted that the question was not one of ownership but whether the ShopSmart Centre, including ALDI and Luxford Court, constituted a shopping complex. He further submitted that while the ALDI supermarket and the ShopSmart Centre were separately owned they were not treated as a separate shopping experience. People came to ALDI and then went to ShopSmart and vice versa. Ownership did not affect the cohesive nature of the premises. Each tenant could exclude any one from their own premises. But the overall complex needed to be integrated and accessible to all customers.
The evidence supports the contention of Messrs Attia and Hanna that ShopSmart and ALDI are “part of a coherent, architecturally designed scheme to ensure an integrated shopping opportunity for the customer”. Each owns its own car park, but these car parks are accessible to all. The facilities are built around the car parks. Ramp ways and pedestrian crossings have been provided so that customers shopping in one area can proceed to shop in the other area. They are essentially located within an “architectural plan” and are also integrated to the extent that that is how they are perceived by those who shop there.
I therefore find that the ShopSmart Centre and ALDI constitute a shopping complex or centre for the purposes of the rules

the centre is integrated
there is an architectural plan for the complex
customers from one of the premises shop at the other
car parking, while owned by different groups, is shared
the centres are accessible for customers going from one centre to another across pedestrian crossings or ramp ways.

I note that the Authority conceded that the area of ShopSmart and Luxford Court with ALDI could reasonably be perceived as a shopping complex in light of the Tribunal’s decision in Singh.

Is the Complex under a Single Management

While the ShopSmart and ALDI arena is one shopping complex, it does not necessarily follow that it falls under single management. Messrs Attia and Hanna contend that the property is under single management. There are formal legal arrangements for ownership but the borders of ALDI stores are irrelevant for consumers. They said that Mr Davey is responsible for supervising all of the common property.
Mr Ced Marsh, Centre Manager of ShopSmart for CB Richard Ellis stated in a letter dated 13 June 2003 that
[T]he property, ShopSmart Outlet Centre, Mt. Druitt, is registered as a freehold title; as is the adjacent site containing the Aldi Supermarket.
The precinct is managed as a co-ordinated development with separately owned but shared car parks and access ramps between buildings.
The Aldi Supermarket was considered as part of the overall development and is considered as an essential part of the retail offer of the precinct.

Mr Davey, the current Centre Manager of ShopSmart, gave evidence in two affidavits and in person to the Tribunal. As manager of ShopSmart he was responsible for ensuring that rubbish was cleared and lighting was fixed on ALDI’s premises. He told the Tribunal about a fence on ALDI property that fell over. He had undertaken to ensure that it was repaired as it posed an occupational health and safety risk for ShopSmart customers who could trip over the fallen railing. He had the fence on ALDI property repaired for the benefit of ShopSmart, as well as the principle of good neighbourliness. He said that Stocklands controlled the leases of the ShopSmart tenants but did not have management control over ALDI. Therefore he was not accountable to ALDI in anyway. Nor was ALDI accountable to him. He agreed that the cooperation between Stocklands and ALDI was based on protecting Stocklands’ interests and also on mutual benefit.
It was put to Mr Davey in cross-examination that Stocklands could control any access by ALDI shoppers to ShopSmart and that similarly ALDI could prevent ShopSmart customers from entering the supermarket. Mr Davey agreed that this was possible, although he did not think it likely. He also did not think it likely that ALDI would build to its boundaries and put up barriers around its car park. He said that this would make no sense as both ShopSmart and ALDI benefit from the integrated nature of the complex. However, he did not deny that it would be possible.
Mr Burley, counsel for Messrs Attia and Hanna, submitted that relevant current circumstances included a proposal to erect an ALDI sign on Stocklands land, incorporating other ShopSmart businesses on the sign. But future circumstances, such as ALDI changing the car park or erecting a barrier should not be considered as these were not in contemplation.
In his second affidavit dated 18 June 2004 Mr Davey attached a letter from ALDI to Mr Davey as manager of ShopSmart in which ALDI discussed signage for neighbouring tenants on ALDI’s wall. The letter refers to “your tenants”, that is the ShopSmart tenants, as distinguishable from ALDI. The letter goes on to say
[W]e strongly suggest a group sign be constructed by Stockland as marked up on the attached plan providing fair signage opportunity for these isolated tenants.
We would like to be involved in the design of such a sign and could support it on the basis of improving customer flow and “activating” the area.

This shows that there is cooperation and room for suggestion in the relationship, but it also shows that whatever Stocklands might think ALDI maintains its own management.

It was suggested that the fact that ALDI maintains its own management is irrelevant to the real question as to whether the complex is under single management. “ALDI manages the premises, but Knight Frank manages the complex” was repeated by Mr Burley several times. He drew an analogy between the coffee shop, Gloria Jeans and ALDI. He said that Gloria Jeans had tables and chairs outside on the common property. The Gloria Jeans management was responsible for clearing the tables and cleaning any rubbish away from that area. This was not the responsibility of the complex management. Gloria Jeans had separate management as premises within the complex, but Knight Frank had overall management of the complex. Similarly ALDI had management of its premises, but Knight Frank had overall complex management.
Mr Dillon for the Authority contended that Gloria Jeans was a tenant. Knight Frank can impose sanctions if it failed to tidy its premises. If ALDI failed to tidy its premises, Knight Frank could clean the boundaries of ShopSmart bordering on to ALDI and recommend to ALDI that they tidy their premises for their mutual benefit. But Knight Frank could not force ALDI to do so. He said “Just as New South Wales does not manage the ACT which is land-locked, Knight Frank does not manage ALDI.”
Messrs Attia and Hanna submitted that it was merely a legal construct as to whether the management of the complex appeared to be made up of two groups. ALDI wanted to own its own site. Other supermarkets might want a lease. If this legal construct was the only reason for not allowing the pharmacy to have Pharmaceutical Benefits Approval then it should be disregarded. If ALDI had not bought its land when building the supermarket, but rather rented it from Stocklands, the shopping complex would be entirely under single management. They said that it would cause an anomalous situation were they to be denied the right to have pharmaceutical benefits approval just because of a different ownership arrangement.
I have some sympathy with this argument that with different ownership arrangements the Authority may have decided the matter differently. It does appear to give rise to an anomalous result. The Authority accepted that it was “a shopping complex” and that if ALDI had leased instead of owned property, subject to the terms of the lease, it may be that that area would come under a single management. However it is this phrase “subject to the terms of the lease” which is pertinent. Even if ALDI had sold the land back to Stocklands, it might have retained management over its complex through the terms of its lease being different from those of other tenants.
It is undeniable that ALDI and ShopSmart are owned by different groups. ALDI owns its own land and Stocklands owns ShopSmart. However, it is not merely the ownership of the premises that is pertinent. Rather the management structure and its operation are critical. “Single management” should be given its ordinary meaning. The relevant definitions from the Macquarie Dictionary elucidate the plain meaning of “under a single management”
“under” … subject to the rule, direction, guidance, etc., of: under supervision
“single” one only; separate; individual … consisting of one part, element or member
“management” … the person or persons managing an institution, business, etc.
Management entails rights and responsibilities over the land, as well as supervision. Mr Davey gave evidence of how he surveyed the site and ensured that the site was safe for ShopSmart customers. He informed ALDI of any part of their land that might need attention and cooperated with them in maintaining a safe and welcoming environment. But ultimately Mr Davey agreed that there were two owners´– ALDI and Stocklands –, two managements – ALDI and Knight Frank –, with mutually beneficial cooperation.
Mr Burley also argued that the policy considerations behind the rules needed to be given effect. He said that the concept of single management was one way of integrating buildings which were separate, but part of the same complex. Use of this concept was also a way of distinguishing between “the rort and the genuine”. However there are other provisions in the rules which prevent the types of irregularities to which Mr Burley referred.
I note that paragraph 23.1 of the Third Community Pharmacy Agreement between the Commonwealth of Australia and the Pharmacy Guild of Australia (2000) affirms the definition of a “large shopping centre” set out in rule 2, and in particular the requirement that the shopping complex be “under a single management”.
In Singh the Tribunal said
75.… If a shopping centre could only refer to a shopping complex that were constructed by one developer or under one manager, there would have been no need to have referred to its being under a “single management or developer.”
At paragraph 109 of Singh the Tribunal continued
[T]he object of the provisions of the Act is to rationalise the number of pharmacies in respect of which approval is given. It does so by establishing a scheme which is intended to ensure that there [sic] an appropriate number of pharmacies are established to meet the need in any particular locality. It does that in some instances by reference in part to the community need and in others, such as this, by reference to the size of the shopping centre in terms of the types of shops it comprises. In the latter instance, the Act has made certain assumptions as to the community need in that locality.
Maintaining single management of a shopping complex including over the supermarket may assist in ensuring that the community need is met.
There may well be other policy considerations for the requirement of single management which were not brought to my attention. In any case the rules are clear on their ordinary meaning that there must be single management. No persuasive reasons were given for reading the rules other than on their ordinary meaning. The submissions and evidence before me support findings that

“under a single management” means one person or group in charge of or supervising a complex
the relationship between ALDI and ShopSmart is not one of single management, but of good neighbourliness and mutual benefit
ALDI retains control over its own premises and own car park
ShopSmart has control over its premises and tenants, but not over ALDI
it is unclear what responsibilities, if any, Knight Frank has in relation to ALDI
while the ownership of their separate parcels of land by ALDI and ShopSmart is relevant to whether or not there is a single management, even if there was entire ownership of the land by Stocklands and ALDI had a lease, the management responsibilities would still be subject to the terms of the lease.

For these reasons I am not satisfied that the ShopSmart/ALDI shopping complex is under a single management for the purpose of the rules and the Act.

Conclusions

In summary I conclude that

the ShopSmart/ALDI arena is a shopping complex within the meaning of rule 2
the complex is integrated for the purposes of ensuring that customers receive the benefit of both facilities
car parking is used by customers of both facilities, but the car parks can be fenced off at any point by either facility without reference to the wishes of the other facility
the complex is not under a single management for the purposes of rule 2
Knight Frank manages ShopSmart and Luxford Court and ALDI manages ALDI
the cooperation between them is one of mutual benefit, not management
the definition of a large shopping centre is not met for the purposes of rules 2 and 7
the application of Messrs Attia and Hanna for a recommendation of approval to transfer the Pharmaceutical Benefits Approval (Number 10995Q) to the ShopSmart Centre must therefore fail.

Decision

The Tribunal affirms the reviewable decision of 20 June 2003 of the Authority.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray.

Signed: .......................................
Associate

Date of hearing  18 June 2004
Date of decision  16 July 2004
Counsel for the Applicant         Stephen Burley
Solicitor for the Applicant          Elizabeth McDowell,
  Guild Legal
Solicitor for the Respondent     Andrew Dillon
  Australian Government Solicitor
  Instructed by Nathan Hyson
  Department of Health and Ageing