Australian Community Pharmacy Authority v Hanna, Ibram
[1998] FCA 354
•9 APRIL 1998
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal - application for approval to supply pharmaceutical benefits - what constituted application - whether application related to particular identified premises or generally within a shopping centre - location of proposed outlet within shopping centre moved - whether ‘definite community need’ for pharmacy.
ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal - application for approval to supply pharmaceutical benefits - Administrative Appeals Tribunal order to Secretary, Department of Health and Family Services to approve application - National Health Act 1953 (Cth) provides for Secretary to consider recommendation to approve application - role of Secretary under s 90(1) - Secretary not party to Administrative Appeals Tribunal proceeding - order set aside.
National Health Act (1953) (Cth), ss 90(1), (3B), (4)
National Health (Pharmaceutical Benefits) Regulations (Cth), regs 6 and 8
Pharmacy Restructuring Authority v Chatfield (1993) 116 ALR 76, considered
Secretary, Department of Health, Housing, Local Government and Community Services v Kaderbhai (1994) 51 FCR 416, applied
Australian Community Pharmacy Authority v Hanna (1997) 24 AAR 213, applied
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY and BOYACI v HANNA
SG 31 of 1997 and SG 32 of 1997
MANSFIELD J
ADELAIDE
9 APRIL 1998
IN THE FEDERAL COURT OF AUSTRALIA
SG 31 of 1997
SOUTH AUSTRALIA DISTRICT REGISTRY
and SG 32 of 1997
BETWEEN:
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
APPELLANTAND
PAN BOYACI
APPELLANTAND:
IBRAM HANNA
RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
9 APRIL 1998
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
With respect to the order of the Administrative Appeals Tribunal given on 27 March 1997 setting aside the recommendation of the Australian Community Pharmacy Authority and substituting its recommendation that the applicant be approved for the purpose of supplying pharmaceutical benefits from the Trott Park Shopping Centre, appeal dismissed.
With respect to the order of the Administrative Appeals Tribunal given on 27 March 1997 directing the Secretary to the Department of Health and Family Services to approve the applicant for the purpose of supplying pharmaceutical benefits, upon the terms therein contained,
(a) appeal allowed
(b) order set aside.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SG 31 of 1997
SOUTH AUSTRALIA DISTRICT REGISTRY
and SG 32 of 1997
BETWEEN:
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
APPELLANTAND
PAN BOYACI
APPELLANTAND:
IBRAM HANNA
RESPONDENTJUDGE:
MANSFIELD J
DATE:
9 APRIL 1998
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
Part VII of the National Health Act 1953 (Cth) (“the Act”) deals with pharmaceutical benefits.
A “pharmaceutical benefit” is defined in s 84(1) of the Act to mean a drug or medicinal preparation in relation to which, by virtue of s 85 of the Act, Part VII applies. Section 85 then has detailed provisions as to the means by which certain drugs and medicinal preparations are declared or otherwise treated as being drugs and medicinal preparations to which the Act applies.
Section 86 determines the persons who are entitled to receive pharmaceutical benefits without payment or other consideration, except as permitted under s 87 of the Act. Section 89 prevents a person from receiving a pharmaceutical benefit unless it is supplied, inter alia:
“(a)by an approved pharmacist, at or from premises in respect of which the pharmacist is for the time being approved, ... in accordance with this Act and the regulations, ...”
The status of being an approved pharmacist is therefore an important one in the supply of pharmaceutical benefits under the Act.
Section 90 of the Act provides for approved pharmacists. A part of the issue on this appeal turns upon its wording. It provides:
“(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.”
The application is referred to the Australian Community Pharmacy Authority (“the ACPA”) established under s 99J of the Act. Under s 99K(1)(a) and (b) its functions include considering such applications, and in respect of them, making a recommendation whether or not the applicant should be approved under s 90 “in respect of particular premises” and, if so, upon what conditions. Section 99K(2) obliges the ACPA, in making a recommendation, to comply with the relevant rules determined by the Minister under s 99L of the Act. It is accepted by the parties to this appeal that the relevant rules determined by the Minister pursuant to that section, and which are disallowable instruments for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth), are those contained within Determination No PB 6 of 1995 which came into operation on 10 May 1995 (“the 1995 Rules”).
A positive recommendation by the ACPA that an applicant under s 90 should be approved in respect of particular premises is a precondition to the Secretary of the Department granting an approval under s 90: s 90(3B). If the ACPA recommends that an applicant under s 90 not be approved in respect of particular premises, then the clear implication of s 90(3B) is that the Secretary, Department of Human Services and Health (now Department of Health and Family Services) (“the Secretary”) may not approve it By reason of s 105AD(2)(a) a recommendation made by the ACPA under s 99K(1)(b)(i) that an applicant under s 90 not be approved under that section in respect of particular premises is reviewable by the Administrative Appeals Tribunal.
Mr Ibram Hanna (“Mr Hanna”) applied on 18 May 1995 for approval in respect of certain premises under s 90 of the Act. As one of the issues on this appeal was as to the precise nature of that application, I shall not refer to it in detail for the purposes of recording the history. Pursuant to the Act, that application was considered by the ACPA. On 5 September 1995, the ACPA recommended pursuant to s 99K(1) of the Act that the applicant not be granted approval for the purpose of supplying pharmaceutical benefits at or from the premises the subject of his application. Again I shall not refer in detail to the precise terms of that recommendation at this point for the same reason. The Secretary on 11 September 1995 rejected the application of the respondent.
On 26 September 1995 Mr Hanna applied to the Administrative Appeals Tribunal (“the AAT”) for review of that decision. On 27 March 1997, the AAT set aside the recommendation of the ACPA: Re Hanna and Australian Community Pharmacy Authority (1997) 46 ALD 399. In substitution, it recommended at 434 that Mr Hanna be approved:
“. . . for the purpose of supplying pharmaceutical benefits from the Trott Park Shopping Centre, namely from the new shop, designated by the letter “H”, to be build at the northern end of the Trott Park Shopping Centre.”
It also purported to set aside the decision of the Secretary not to approve the applicant and remitted the matter to the Secretary for reconsideration with the direction that the applicant be approved for the purpose of supplying pharmaceutical benefits from those premises “subject to the Secretary’s satisfaction to incidental matters such as compliance with s 90(4) of the [Act]”.
THE ORDER AGAINST THE SECRETARY
Apart from the principal matters argued on this appeal, I sought submissions as to whether the decision and order of the AAT relating to the Secretary was within its power, and a proper one. The Secretary was not a party to the appeal.
The order made was in much the same terms as the order of the Full Court in Pharmacy Restructuring Authority v Chatfield (1993) 116 ALR 76. The Secretary was a party to the proceeding in that case. The Full Court’s reasons for that form of order emerge from the judgments of Davies and Lee JJ at 82, and of French J at 91-93. French J said at 92:
“... there was no suggestion of any intervening consideration that might cause the Secretary not to accept the Authority’s recommendation had that recommendation been for the approval of Mr Chatfield’s application. However that is not to say that there might not be other considerations of a minor or incidental nature in respect of which the Secretary would need to be satisfied before granting approval and it is appropriate that any direction take that into account.”
In Secretary, Department of Health, Housing, Local Government and Community Services v Kaderbhai (1994) 51 FCR 416, a similar question arose. The Secretary was a party to that proceeding. In that case, the Tribunal order was set aside and the Court substituted an order recommending to the Secretary that the application be approved. It also set aside the Secretary’s decision to reject the application and directed the Secretary to “reconsider the application in the light of the substituted recommendation” (per Foster, Cooper and Whitlam JJ at 422-423). The Court suggested that, in the case of a recommendation from the Pharmacy Restructuring Authority, the Secretary’s powers were not confined to incidental matters. It said:
“In remitting the matter to the Secretary, it is appropriate to make no order as to how he should exercise any discretion under s 90(3B) save to observe that he may not simply disagree with the recommendation. This would be a course open to him in the case of a recommendation by the PRA, but not where the recommendation is that of the Tribunal.”
Both those decisions were under earlier provisions of the Act, but I do not consider that the differences reflected in the Act in its present form are material to the immediate issue. It is apparent that Chatfield (above) did not involve a full consideration of the extent of the Secretary’s power under ss 90(1) and (3B) of the Act, and that the Court in Kaderbhai (above) was not then prepared explicitly to confine the circumstances in which the Secretary, in the light of a recommendation that an approval be granted, might nevertheless not grant the approval sought. The issue was not fully ventilated before the AAT in the matter before the Court; its focus after deciding the nature of the application before it was simply upon whether “definite community need” under r 5(a) of the 1995 Rules was made out.
I note that there are circumstances in which a decision of the Secretary may be reviewed. Section 105AB(7) provides for an application to be made to the Tribunal to review a decision of the Secretary under s 90 rejecting an application under that section. The Secretary in certain circumstances may reject an application under that section even though the ACPA has recommended approval of it, and must do so if the ACPA has recommended that it be refused: ss 90(1) and (3B). Presumably an application to review a decision of the Secretary under s 90 may be made in either situation, but it would be meaningless to do so if the ACPA has recommended that the application be refused without seeking review of the ACPA recommendation itself. If a recommendation by the ACPA is that an application under s 90 be refused, and the Secretary has as required by s 90 then rejected the application, the subsequent successful review of the ACPA recommendation will mean that the Secretary’s decision may no longer have the required legal foundation to underlie it. If the ACPA is to fully reconsider the application, then the exercise by the Secretary of the powers and obligations under ss 90(1) and (3B) will arise only when the ACPA has made a further recommendation. If the AAT directs the ACPA to recommend approval of the application, then the Secretary will have to decide whether, in the light of that recommendation, to grant approval under s 90(1). If the AAT, as here, itself recommends approval be granted, then again it is for the Secretary to decide whether, in the light of that recommendation, to grant approval under s 90(1).
As the Secretary was not a party to the review before the AAT, in my view the AAT could not have made the order against the Secretary which it purported to do. In particular the AAT in the circumstances was not entitled to direct the Secretary in the terms of its order, in effect to grant the approval sought subject to incidental matters. Apart from the Secretary not being a party before it, the Secretary has a discretion under s 90(1), in the light of a recommendation by the ACPA or the AAT on review that an application for approval be granted, whether or not to grant that approval. The AAT’s powers on review are under s 43, Administrative Appeals Tribunal Act 1975 (Cth). It may exercise all the powers and discretions of the primary decision maker whose decision is under review. In this instance, that was the decision of ACPA reflected in its recommendation. The effect of the recommendation now made by the AAT, standing in the shoes of the ACPA, to the Secretary is to activate the Secretary’s obligation to exercise the discretion under s 90(1) of the Act whether or not to grant the approval sought. The Secretary has not yet exercised that discretion. The original recommendation of the ACPA to refuse the approval sought meant the Secretary had no choice but to refuse the approval. In my view, in the present circumstances, that part of the order of the AAT directed to the Secretary should be set aside in any event. If there were any question that, in the circumstances, the Secretary was unable to consider the matter because the decision (based upon the initial and reversed recommendation of the ACPA) must stand, I would give leave to the respondent to apply to join the Secretary as a party. I did not understand counsel for the ACPA to submit that to be the case.
The full extent of matters to which the Secretary may have regard in exercising the discretion under s 90(1), once the ACPA has recommended an approval be granted, has not been fully explored in either Chatfield (above) or Kaderbhai (above). It is accepted in the submissions of all parties that considerations relevant to the exercise of that discretion extend beyond the matters to which s 90(4) refers. The matter was not ventilated at any length before the AAT. Although Mr Hanna now contends that I should indicate that the Secretary’s further role under ss 90(1) and (3B) is as reflected in the AAT’s order, I decline to do so. I think it is up to the Secretary to address the recommendation of the AAT, in the light of and consistent with the observations of the Full Court in Kaderbhai referred to above. As the Secretary is not a party, I propose simply to set aside that part of the AAT’s order directed to the Secretary.
THE GROUNDS OF APPEAL
At the hearing before the AAT, apart from Mr Hanna and the ACPA appearing, the AAT was satisfied that the interests of Mr Pan Boyaci (“Mr Boyaci”) also were affected by the decision under review. It ordered that he be made a party to the proceedings. There is no dispute that, in those circumstances, Mr Boyaci may also appeal from the decision of the AAT. He has done so.
The grounds of appeal of each of the ACPA and Mr Boyaci substantially overlap. They fall into two general groups, namely:
(a)issues relating to the jurisdiction or power of the AAT to have substituted the decision and recommendation which it did in respect of the premises described as
“Trott Park Shopping Centre, namely from the new shop, designated by the letter “H”, to be built at the northern end of the Trott Park Shopping Centre”
as it was contended that the application for approval was in respect of different premises and so it was beyond the power of the AAT to make the recommendation which is referred to above; and
(b)issues relating to whether the AAT erred in law in reaching its conclusion that a definite community need for pharmaceutical services in the area in which the premises are situated exists, that being a precondition to its approval under the 1995 Rules: see r 5(a)(ii) and r 2 of the 1995 Rules.
ISSUE AS TO THE PREMISES
The application to the ACPA was made by Mr Hanna on 18 May 1995. The AAT found that he presented himself at the relevant offices and presented to an officer a three page letter with five attachments. The letter included the following:
“I am hereby applying for an approval number to establish a pharmacy at Trott Park Shopping Centre.”
The letter then addressed a number of matters to which the ACPA would have to have regard under the 1995 Rules. Accompanying that letter was a letter of support from a general practitioner in respect of the establishment of a pharmacy “in the Trott Park Shopping Centre at 20 Heysen Drive Trott Park”, a letter from the City of Marion indicating that the establishment of a pharmacy “in the Trott Park Shopping Centre” was a permitted use under the relevant planning requirements, a letter from Requim Pty Ltd, landlords of the Trott Park Shopping Centre, agreeing to “lease Shop H to you for the purposes of establishing a pharmacy” and a plan which the AAT described, and found, as “showing the layout of the Trott Park Shopping Centre depicting the existing shops and the proposed location of Shop H which was yet to be built”. It is accepted that that plan showed the proposed block of shops ran in a north south direction, and that the then proposed Shop H was at the southern end of the block.
At that time, Mr Hanna was requested to fill in a form entitled “Application for Approval as a Pharmacist”. He did so. It is a pro forma document to which the address of the premises was added. The pro forma document relevantly reads that the applicant does:
“hereby apply for approval as a pharmacist under section 90 of the National Health Act 1953 in respect of premises situated at (include shop number where applicable): ...”
and a space for the description of the premises. Mr Hanna then has printed in:
“Shop H, 20 Heysen Drive
Trott Park 5158”.
He has dated and signed that form. Immediately above his signature the pro forma includes that he is willing to supply on demand at or from the premises referred to, pharmaceutical benefits in accordance with Part VII of the Act.
The AAT specifically found that Mr Hanna, after providing his letter described above with the attachments, was asked to fill out that form. He was assisted by the relevant officer. He asked that officer what he should put on the form in the space provided for the description of the premises, and that officer, after looking at the documents lodged by him, told him to put “Shop H, 20 Heysen Drive, Trott Park 5158”. He complied with that suggestion.
The issue is significant because, as the AAT’s reasons indicate, the proposed Shop H at the southern end of the shopping centre was never built. Necessary council approval was not given. By letter of 1 June 1995 Requim Pty Ltd wrote to Mr Hanna with the suggestion that Shop G, instead of Shop H would be more suitable for his requirements as a pharmacy. He thereupon wrote to the ACPA by letter of 14 June 1995. He had by that time received a letter from the ACPA of 30 May 1995 identifying his application as being one for approval of a pharmacy at Shop H, Trott Park Shopping Centre, and inviting him to submit additional information in relation to his application. His letter of 14 June 1995, so far as is relevant to the present issue, said:
“I would like to inform you that, according to the owner of the shopping centre, that Shop G will be more suitable and readily available to set up the pharmacy, better than Shop H”
and he enclosed the letter from Requim Pty Ltd to that effect. Shop G refers to the shop so identified on the plan lodged with the initial application. Later that month he provided to the ACPA a lease in respect of premises at the Trott Park Shopping Centre which was described as:
“That piece of land marked G in GP 105 of 1983 being portion of the land comprised in Certificate of Title Register Book Volume 5198 Folio 495.”
He also produced with his letter of 14 June 1995 a surveyor’s report showing the distance between “the proposed premises and the nearest other approved pharmacy, measured door to door by the shortest lawful access route” to be 2,528.3 metres. The significance of that information was to satisfy the requirement of a minimum two kilometres separation distance by the shortest lawful access route between the proposed premises and the nearest other approved pharmacy: r 5(a)(i) of the 1995 Rules. I was told in submissions that the proposed premises from which the measurement was taken was Shop G as depicted on the plan. There is clearly sufficient leeway for it not to matter in relation to r 5(a)(i) of the 1995 Rules whether the measurement be taken from any particular shop in the proposed block of shops. It is unclear whether Shop G referred to in the lease is necessarily that same shop, but I assume it is.
On 2 May 1996, the AAT decided that the application for review was constituted by the three page letter which the applicant lodged together with the five attachments referred to. It found that that application was for approval for the purpose of supplying pharmaceutical benefits “at or from the Trott Park Shopping Centre”. It said that the form completed by Mr Hanna, a form approved by the Secretary for the purposes of reg 8 of the National Health (Pharmaceutical Benefits) Regulations “should be disregarded” as it “did not constitute an application for the purposes of s 90(1) of the Act for the simple reason that the applicant did not understand in effect what he was doing in filling out the details “Shop H, 20 Heysen Drive, Trott Park, 5158”. It accepted Mr Hanna’s evidence on those matters. It concluded that neither the Act nor the Regulations under the Act require an application pursuant to s 90 of the Act to be writing or to be in a particular form, and in particular that reg 8 which gives the Secretary of the ACPA the discretion to refuse to entertain an application unless it is in a form approved by the Secretary, does not prohibit the receipt of an application compiled in some other form. It found:
“. . . that prior to 18 May 1995, the landlord had in effect agreed to a pharmacy being established at the Trott Park Shopping Centre, and that an area for that purpose would be provided to the applicant”.
At no time had the ACPA suggested to Mr Hanna that he should make a fresh application, nor amend his application to refer to Shop G. The AAT observed that issues as to the premises which were the subject of the initial application had not needed to be determined by ACPA as it had found that the required ‘definite community need’ had not been made out, so it recommended against the application in any event.
The AAT treated that ACPA recommendation as being in respect of premises located at Shop H, 20 Heysen Drive, Trott Park, so that the Secretary’s decision of 11 September 1995 to reject the application for approval was also in respect of proposed premises at Shop H, 20 Heysen Drive Trott Park. The shop, by then designated Shop H, was not the same shop as that so described in the original application, but one at or near the northern end of that block of shops.
After referring to Kaderbhai (above), the AAT concluded that the references to “the proposed shop” in the original letter of application of 18 May 1995, in context, were:
“. . . no more than an indication by the applicant of a hope that the shop will be built and an acknowledgment that he is going to have to have approval in respect of somewhere at the shopping centre but they do not indicate that the applicant’s application contained (in the letter) is only related to the proposed shop as being the particular premises for the purposes of section 90”
of the Act.
It is the conclusion that the application was for approval for the purpose of supplying pharmaceutical benefits “at or from Trott Park Shopping Centre” which the ACPA contends was wrong in law.
Section 90 of the Act does not prescribe the means by which an application for approval under that section may be made. Section 140 empowers the making of regulations in terms sufficiently wide to encompass such matters.
The National Health (Pharmaceutical Benefits) Regulations (“the Regulations”) under the Act as in force at the time of Kaderbhai’s case (above) included the following:
“6.(1)A reference to a Form by letter shall be read as a reference to the Form so lettered in Schedule 6”
and
“8.The Minister, in the case of a hospital authority, and the Secretary, in the case of a pharmaceutical chemist or medical practitioner, may refuse to entertain an application for approval under Part VII of the Act unless the application
(a)in the case of an application for approval of a pharmaceutical chemist — is in accordance with Form A, Form B, or Form C, as the case requires;
(b) . . .
(c) . . .”
Schedule 6 included Form A entitled “Application for Approval as a Pharmaceutical Chemist”. It provided a pro forma application for completion, including completing the following:
“for approval as a pharmaceutical chemist under [the Act] in respect of premises situated at . . .”
The applicant was, by the pro forma, required to declare a willingness to supply “at or from the premises specified above” pharmaceutical benefits.
The National Health (Pharmaceutical Benefits) Regulations (Amendment) (the amendment to the Regulation) dated 11 October 1994, and commencing relevantly on 1 November 1994, prior to the subject application, omitted reg 6, and amended reg 8 so that it relevantly provided:
“8.The Minister . . . and the Secretary, in the case of a pharmacist or medical practitioner, may refuse to entertain an application for approval under part VII of the Act unless the application
(a)in the case of an application for approval of a pharmacist — is in accordance with a form approved in writing by the Secretary.
. . .”
The form approved in writing by the Secretary was the form presented to and completed by Mr Hanna in the circumstances as found by the AAT above. It was suggested in submissions that that amendment to the Regulations may have been a consequence of the decision in Kaderbhai (above).
The contentions of the ACPA and of Mr Boyaci on this question were short and to the point. They were:
Following the amendment to the Regulations, in particular the deletion of reg 6, the application must be in a form approved by the Secretary so that the application was in respect of Shop H at the southern end of the Trott Park Shopping Centre only, and that there had been and could be no approval in respect of those premises because the shop was acknowledged on the evidence never to have been built. It is said the AAT had no jurisdiction, in the circumstances, to recommend approval in respect of some different shop in the Trott Park Shopping Centre.
The ACPA had no power to amend the application, nor to grant an application in respect of premises which were not the subject of the application.
The reason for the ACPA’s attitude was explained in the following way: it has a significant number of applications for approvals under s 90, and in fairness to all applicants treats them for administrative purposes in the sequence upon which they are received. To consider an application other than for the premises to which it specifically relates, or to permit amendment in respect of different premises during the course of the application, would be unfair because the pharmacist so applying would effectively jump the queue to the disadvantage of other applicants under s 90.
By way of response, apart from seeking to uphold the decision of the AAT, Mr Hanna also contended that, if the application originally made was in respect of Shop H, the application itself did not specify which shop was Shop H and the shop proposed to be leased was ultimately designated Shop H in any event.
No submission was put that the identification of premises confined to a particular shop in a shopping centre was necessary to ensure a certain design or presentation or the existence of particular internal facilities. The location of the premises is significant in the present circumstances to determine whether, under r 5 of the 1995 Rules, there was a sufficient community need established for the approval sought, and to determine whether the proposed premise was within two kilometres of the nearest approved pharmacist by the shortest lawful access route. Those factors are not related to the internal or external design or quality of a particular premise by comparison with any other premise. In other words, there is nothing in the 1995 Rules which suggests in the present circumstances that it was a significant matter whether the particular premise was Shop H as originally depicted on the plan, or Shop G, or some other shop in the block of shops (as occurred).
The argument rests effectively on reg 8.
Kaderbhai (above) was decided before the amendment to the Regulations. The pharmacists had applied for approval under s 90 in respect of premises “situated at Tweed Heights Estate Shopping Centre, Ash Drive, Sth Tweed”. It was accompanied by a town planner’s report which described that shopping centre as comprising nine shops, and the proposed lease of “shop 9” to a chemist, together with a plan of a shop described as “shop 9”. The authority recommended against the application as there was no ‘unmet public need’ under the then applicable guidelines, and the Secretary duly refused the application. Before the AAT, the applicant sought approval in respect of a different shop in that shopping centre. The AAT ruled that there was no fresh application in the circumstances.
The Court upheld that part of the decision. It regarded the general description of the premises in the application itself, which was on the form prescribed by the Schedule under the then reg 6 of the Regulations, as meeting the requirement of that regulation. It then said of the expression “particular premises” in s 90(1) of the Act (at 420):
“The word “premises” seems to us perfectly apt to embrace a shopping centre. Nor does the use of the adjective “particular” compel the conclusion that, in the case of such a centre, the “premises” are to be divided into parts so that only a part of such premises may be the subject of an application under s 90(1) of the Act. The word “particular” means in the context no more than what the prescribed Form A assumes, namely, that the situation of the premises that are the subject of the application should be specified. After all, the location of approved pharmacists and approved medical practitioners will be known to the Secretary. There is certainly nothing about the geographical notion of an “area” under ss 92(1) and 98(4) of the Act that suggests a shopping centre might not be “premises” for the purposes of those provisions.”
Thus it concluded that the recommendation of the AAT was competent and no fresh application was necessary. It regarded the limitation on power to grant approval as imposed by s 90(4) of the Act, the purpose of which is explained by French J in Chatfield (above, at 93), as not requiring “spatial symmetry” with the premises the subject of the application under s 90(1). It found no good reason why such precise symmetry of the premises the subject of the application, and premises excluded from approval under s 90(4), should be necessary to achieve any of the objects of the Act. I have noted above that nothing more was put on this appeal as to why the precise and exact location of a particular shop within a block of shops was necessary to serve the purposes of the Act or of the 1995 Rules.
Nevertheless, the contention to that effect was advanced by reason of the Regulations as amended by the amendment to the Regulations.
Regulation 8 now entitles the Secretary to refuse to entertain an application under s 90(1) if it is not in accordance with a form approved in writing by the Secretary. I have set out above the findings of the AAT on the nature of the application, and as to the circumstances in which the form ‘Application for Approval as a Pharmacist’ was completed. The ACPA and Mr Boyaci did not assert any reviewable error of law in the making of those findings.
The question argued was really that, notwithstanding those findings, as a matter of law the application was in respect of the particular shop premises described on that form, and not the premises described as ‘Trott Park Shopping Centre’.
It should first be noted that reg 8 is permissive only; the Secretary may receive an application in the form expressed in the letter from Mr Hanna of 18 May 1995. Although, providing the Secretary was acting within power, that letter may have been rejected as the application, the AAT by its findings must be taken to have concluded that was no refusal by the Secretary to entertain the application in those terms. Its findings reflect that, as it did not conclude that the form ‘Application for Approval as a Pharmacist’ was the application. Its findings as to the circumstances in which that form came to be filled out also indicate clearly that the request that that form be filled out also did not amount to a refusal by the Secretary to receive the letter as the application. There is no evidence which was put before the AAT which directly asserted a refusal by the Secretary to entertain the application as presented by that letter. Indeed, the consideration which the ACPA gave to the application, and the ground of its recommendation to refuse the approval by reason of r 5 of the 1995 Rules, tends to suggest that it was treating the letter (probably together with the form) as the application before it. Its recommendation was at a time when Mr Hanna had informed the ACPA that the lease proposed was no longer for Shop H but for Shop G, but it did not then decline to hear the application. It proceeded to hear it, and to provide its recommendation.
Accordingly, I conclude that the finding of fact of the AAT as to the nature of the application, in particular that the premises from which pharmaceutical benefits were proposed to be supplied were premises at Trott Park Shopping Centre, was available to it. Once that step is taken, then in my view I am bound to follow the decision of the Full Court in Kaderbhai (above). I accordingly conclude that the application in respect of premises at Trott Park Shopping Centre was a valid one, and that the AAT was entitled to make the recommendation which it did with respect to those premises.
I have not overlooked the contention that ss 90(2), (4) and (6) all support the submissions of ACPA and Mr Boyaci. It is said that s 90(2) which refers to a pharmacist desirous of supplying pharmaceutical benefits at or from several premises, requires a separate application to be made in respect of each of those premises, and a separate approval to be granted in respect of each of those premises. It was contended that that made it plain that the premise to be identified was not a shopping centre or a physical location generally but a particular location. The contention based on s 90(4), which prevents the Secretary from approving a pharmacist conducting a pharmacy in respect of premises from which that pharmacist is not permitted under the law of a State or Territory to carry on business, is also said to focus on the particular premises as distinct from a more general description of premises. Similarly, it was said that s 90(6) invokes a reference to a pharmacist as including a person who owns or is about to own the business for the supply of pharmaceutical benefits “at or from particular premises”, again indicating a more explicit identification of premises than simply a particular shopping centre. The difficulty with those contentions is that Kaderbhai (above) has determined such arguments adversely to ACPA and Mr Boyaci. It has decided that there is no necessary physical identity between the description of the premises for which approval is sought under s 90(1) and the precise premises from which pharmaceutical benefits are dispensed after an approval is granted. The description of premises for the purposes of the application may be a wider one than the ultimate description of the premises from which the dispensing occurs.
In my view, once a valid application was made, the decision and reasoning in Kaderbhai (above) responds effectively to those contentions. I have separately concluded that, notwithstanding reg 8 of the Regulations as amended by the amendment to the Regulations, the finding of the AAT as to the nature of the application was available to it and was not a finding inconsistent with reg 8.
Consequently, no question of the power of the AAT to amend the application, or to make a recommendation with respect to premises other than those specified in the application arises.
Nor do I need to resolve the contention of Mr Hanna that, if his application is confined to “Shop H” within the Trott Park Shopping Centre, then there is in any event no error in the AAT proceeding as it did because Shop H within that shopping centre was not identified, so that the nomination of a different shop to that originally in mind as the shop identified as Shop H did not mean that the application was incompetent. If I were obliged to rule on the argument, I would reject it. It would arise only if reg 8 required a specific shop to be identified in the application, and the evidence clearly indicates which shop is referred to in the expression “Shop H”. The particular shop under consideration, on that premise, is clearly identified as a matter of substance.
DEFINITE COMMUNITY NEED
The 1995 Rules provide that approval of a pharmacist under s 90 of the Act in respect of particular premises must not be recommended by the ACPA, except as provided for in pars 5 - 8 of the 1995 Rules. Rule 5(a) relevantly provides:
“5.Approval of a pharmacist under section 90 of the Act in respect of particular premises must be recommended if:
(a)(i) . . .
(ii)the Authority is satisfied that there is a definite community need for pharmaceutical services in the area in which those premises are situated; and
(iii). . .”
Rule 2 defines definite community need in the following way:
““definite community need”, in relation to the catchment area serviced or proposed to be serviced by a pharmacy, means that none of the following conditions applies to the area:
(a)that the catchment area has a population of less than 3,000 for most of the year;
(b)that the proportion of disadvantaged persons (aged persons and persons who are unemployed or receive pensions) is less than 10 per cent and can be reasonably serviced by other means;
(c)that the catchment area does not have the equivalent of a full-time medical practitioner;
(d)that the catchment area is being adequately serviced by other approved pharmacists;
(e)that the total number of claimable PBS prescriptions and RPBS prescriptions claimed by approved pharmacists in respect of the catchment area in the last 12 months is less than 3,000;
(f)that isolation from, or a poor, public transport system to adequate shopping does not hinder the bulk of the population;
(g)that the population is mobile and contains a high proportion of commuting workers;
(h) that the catchment area has no general shopping facilities;
. . .”
It is unnecessary to refer to other parts of the 1995 Rules. The ACPA and Mr Boyaci argued that the AAT fell into legal error in its consideration of definite community need only in respect of subpars (d), (f) and (h) of the definition. Ultimately the ACPA pursued its complaint only in respect of subpar (h) of the definition. Mr Boyaci maintained his complaints in respect of each of those three subparagraphs of the definition.
I shall deal with each separately. In each instance, it is necessary to bear in mind that the definition of “definite community need” relevantly means that none of the conditions in subpars (d), (f) and (h) apply to the area.
Subpar (h): That the catchment area has no general shopping facilities
Included in the catchment area shopping facilities were those at the Trott Park Shopping Centre.
The AAT considered the evidence and concluded that condition (h) of the definition of “definite community need” in r 2 did not apply to the catchment area proposed to be served by a pharmacy at the Trott Park Shopping Centre. It stressed the view that the meaning of “general” in that context is the opposite of specific and that therefore the words “general shopping” should be interpreted in contrast to the notion of “speciality shops”. It was satisfied that the Trott Park Shopping Centre provided general shopping facilities, more specifically through the Trott Park Mini Mart, because there was available through that outlet a wide range of products akin to what one would find in a general store. It observed (at 424):
“The Tribunal rejects the respondent’s submission that general shopping means weekly shopping. The Tribunal has accepted in reaching this conclusion the applicant’s submission that a relevant aspect of the definition of “definite community need” is the unplanned trip to the pharmacy which cannot be incorporated into a weekly shopping trip. The Tribunal finds that the catchment area has general shopping facilities.”
The submission for Mr Boyaci, and for the ACPA, is that the AAT’s finding is fundamentally wrong, because it equates general shopping facilities with nothing more than a general store. The concern is that any mini-mart or seven day supermarket of small proportion would be sufficient to justify the introduction of a pharmacy. Their contention is that ‘general shopping facilities’ requires there to be extensive or universal or total shopping facilities, and not simply a delicatessen or a corner store. The ACPA asserts the correct approach would have been to ask whether there was available “a range of services and shops necessary to maintain day to day living”, and that that approach would have led to the conclusion that there were no general shopping facilities.
Mr Hanna contends that the question is one of fact for the particular case, and that the Tribunal’s conclusion was reached after consideration of the evidence as to the wide range of products available at the Trott Park Shopping Centre, and to a much lesser degree at Woodend Shopping Centre also within the catchment area. He submits that no error of law is demonstrated.
In my view, no error of law on the part of the AAT has been demonstrated by the ACPA or by Mr Boyaci. The AAT has carefully referred to and considered the evidence on the topic. It rehearsed the respective submissions. It reached the conclusions referred to above. There will be, as the AAT recognised, a range of shopping facilities variously available at certain locations: there will be sites where there is nothing but one or two speciality shops, and at the opposite extreme there will be large shopping centres which contain virtually all shopping facilities which may be required by consumers to meet the vast gamut of their expectations. Between those extremes, the question of whether “general shopping facilities” exist is, in my view, really one of fact and degree. It may be that some ‘corner stores’ meet that description and some do not. The package of criteria encompassed under the definition of “definite community need” suggests that, in various ways, there must be shown at least a specified level of demand for pharmaceutical services by a significant number of persons on the one hand, and on the other that that demand is not reasonably capable of being met having regard to existing pharmaceutical services and to the reasonable capacity of the various sectors of the public within the catchment area to get such services including from outside the catchment area. One indication of that capacity would be that their general shopping requirements are not met within the catchment area, as the routine movement outside the catchment area for general shopping requirements would tend to suggest that movement could also enable the need for pharmaceutical services to be met in the same manner. The Tribunal has adopted such an approach, in its decision that general shopping facilities, in the sense of facilities meeting day-to-day shopping needs of persons in the catchment area, do exist. There will then, in each case, be questions of fact and degree to be determined. The Tribunal has reached a conclusion of fact, and in my view has done so within falling into error of law in the construction or application of condition (h).
Subpar (d): That the catchment area is being adequately serviced by other approved pharmacists
The error of law contended for by Mr Boyaci was that the AAT set too high a test by not using the test of “adequately served” but using the test of “well served”. Thus, he contends in particular that the finding of the AAT that “the absence of a pharmacy in the catchment area means that some residents of the catchment area may be exposed to adverse health risks” is against the weight of the evidence, in particular that of Dr Cheung, as she said, that no patient ever left her surgery without some arrangement being in place to ensure medication could be obtained within a satisfactory time frame. He also refers to uncontroverted evidence of a free delivery service into the catchment provided by pharmacies at Hallett Cove and Reynella.
The AAT carefully referred at some length to the evidence on this topic. It noted that there was a free delivery service extending to the catchment area, advertised in a local newspaper, but that that service was rarely used, and generally from pharmacists in adjoining areas as to their attempts to service the catchment area. It noted the evidence of Dr Cheung, a general practitioner with a practice in the Trott Park Shopping Centre. She had a firm view that there was a need for the establishment of a pharmacy at that shopping centre because she constantly, about two to three times per week, had patients telling her that they were unable to get their prescriptions filled out. It summarised her evidence that she would try to provide these patients with samples of the medication but this was not always possible. When it was not possible, she would emphasise to the patient the importance of getting the script filled out as soon as possible. It noted that Dr Cheung told the AAT that the sort of medication involved in such situations was mainly antibiotics or analgesics, and that there should be often no delay in treatment. She identified categories of her patients who had difficulty getting access to pharmaceutical services at the present time, so that the pharmacy proposed was a desirable one. I have reviewed her evidence. I do not think the Tribunal has misapprehended it. To the extent to which its assessment of what her evidence was, or its significance, I do not think the Tribunal has fallen into error. The Tribunal also reviewed at length other evidence on the topic. It specifically rejected the view that the provision of delivery services itself from outside the catchment area constituted adequate servicing, given the delays involved in such service and the low level of awareness within the catchment area. It found that the absence of the pharmacy in the catchment area meant that some residents of the catchment area may be exposed to adverse health risks, and that the day to day health needs of the people who live in the catchment area are not being met by the nearest other approved pharmacists. That was because a significant number of residents of the catchment area have considerable difficulty getting to those pharmacists by reason of a number of factors, including distance, the undulating nature of the terrain, the lack of availability of a car, the inadequacy of public transport and the perceived dangers in crossing the two major highways especially when accompanied by children or when feeling unwell. It further found that some people have on occasions delayed getting medication for themselves or their children due to these difficulties thereby exposing themselves or their children to unacceptable risks. In my view those findings were open to it.
Nor do I think that the Tribunal misdirected itself as to the proper test. Despite the submission to the contrary, it identified the words “adequately serviced” to be interpreted in accordance with their natural meaning. It considered the dictionary meaning of those words, and concluded (at 431):
“The Tribunal is of the opinion that it is implicit in the use of the words “adequately serviced” in the context of condition (d), that “other approved pharmacists” are adequately meeting the health needs of those within the catchment area.”
I do not discern any misdirection in those words. I reject the contention of Mr Boyaci to the contrary. In my view the Tribunal did not apply a test other than that prescribed by subpar (d) of the definition of definite community need in r 2.
Subpar (f): That isolation from, or a poor, public transport system to adequate shopping does not hinder the bulk of the population
The Tribunal was said to have erred in construing this condition by making an assessment of “whether the bulk of the population is hindered by a poor public transport system to adequate shopping or whether the bulk of the population is hindered by being isolated from a public transport system to adequate shopping”.
It is said that the proper test is whether there is isolation from adequate shopping, or a poor public transport system to adequate shopping, which hinders the bulk of the population. I have previously addressed that matter in Australian Community Pharmacy Authority v Hanna (1997) 24 AAR 213. The Tribunal applied that decision. For the reasons which I have expressed in that decision, briefly summarised as follows, I think the Tribunal did not fall into error. In particular I said (at 226):
“It is clear enough, and not really contested in argument, that the purpose of this condition being specified is to preclude the approval of new premises if the community in the area can, by use of the available public transport system, have access to adequate shopping including for pharmaceutical services. If so, there is no need for a new pharmacy. Once that step is taken, then in my view the approach of the AAT is seen to be correct.”
I adhere to those views. The focus of that condition is clearly upon the question of whether, by public transport, the population in the catchment area has access to adequate shopping including for pharmaceutical services. Public transport may not provide that access because it does not reach geographically to the area, or because the service is insufficient for that purpose. The proposition of Mr Boyaci may be addressed in a different way. If there was a good public transport system supplying a particular area, but it was necessary to use that public transport system to get access to adequate shopping, would it be correct to say that the condition was not met simply because the bulk of the population were isolated from that shopping area other than by using that good public transport system? I reject that aspect of the complaints.
CONCLUSION
Accordingly, in respect of this appeal against the AAT decision in so far as it refers to the ACPA recommendation, I have concluded that the AAT had the power to consider the application of Mr Hanna under s 90(1) of the Act as an application in respect of premises situated at the Trott Park Shopping Centre, and to have made the order setting aside the ACPA recommendation and substituting its recommendation that Mr Hanna be approved for the purpose of supplying pharmaceutical benefits from the Trott Park Shopping Centre, namely from the new shop, designated by the letter “H” to be built at the northern end of the Trott Park Shopping Centre.
The appeal from that order will be dismissed.
In my view, the result of that decision by the AAT is that the foundation for the Secretary’s decision to refuse the approval, which by reason of s 90(3B) the Secretary was obliged to make once the ACPA recommended that the approval not be given, ceased to exist. The Secretary should therefore proceed afresh to consider whether to grant the approval in the light of the AAT’s recommendation. If there is any doubt that the Secretary should so proceed, I give Mr Hanna leave to apply to join the Secretary for the purpose of setting aside that initial refusal of the approval. All parties frankly and properly acknowledged that the matter had proceeded on the basis that, if the AAT’s decision were upheld in relation to the ACPA recommendation, they had expected the Secretary’s initial decision also to fall.
However, for the reasons expressed, in the particular circumstances where the Secretary was not a party to the proceeding, and because the order against the Secretary was too confined in any event, I set aside the order made by the AAT against the Secretary. Were the Secretary a party, I think the proper order would have been to set aside the Secretary’s decision not to approve the application and to remit the matter to the Secretary for reconsideration, in the light of the recommendation of the AAT. The form of order would reflect the form of order against the Secretary made by the Full Court in Kaderbhai (above).
I certify that this and the preceding twenty-three (23) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Associate:
Dated: 9 April 1998
Counsel for the Appellant
Australian Community Pharmacy Authority:Mr D Simpson
Solicitors for the Appellant
Australian Community Pharmacy Authority:Australian Government Solicitor
Counsel for the Appellant Pan Boyaci:
Solicitors for the Appellant Pan Boyaci:
Mr B Hayes QC
Ward & Partners
Counsel for the Respondent: Mr M Roder Solicitors for the Respondent: Norman Waterhouse Date of Hearing: 12 December 1997 Date of Judgment: 9 April 1998
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