Banias, Chris v Australian Community Pharmacy Authority
[1997] FCA 648
•18 JULY 1997
FEDERAL COURT OF AUSTRALIA
PHARMACEUTICAL BENEFITS - Approval of pharmacists supplying pharmaceutical benefits - Application to Secretary for approval of supply at new premises - Reference of application to Pharmacy Restructuring Authority for recommendation - Minister to determine rules subject to which Authority is to make recommendations - Determination requiring approval of new premises on relocation of approved pharmacist if new premises situated not more than one kilometre measured door to door by shortest lawful access route from existing premises - Meaning of "shortest lawful access route".
National Health Act 1953 ss90, 99K, 99L
Szelagowicz v Stocker (1994) 35 ALD 16
Loveridge v Pharmacy Restructuring Authority (1995) 39 ALD 103
Australian Community Pharmacy Authority v Hanna (unreported, 6 February 1997)
Crafter v Kelly [1941] SASR 237
Taikato v The Queen (1996) 186 CLR 454
Lowery v Walker [1911] AC 10
Teoh v Minister for Immigration (1994) 49 FCR 409
Videto v Minister for Immigration (1985) 8 FCR 167
Lek v Minister for Immigration (1993) 45 FCR 418
Prasad v Minister for Immigration (1985) 6 FCR 155
Minister for Immigration v Surjit Singh (unreported, 7 May 1997)
Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589
CHRIS BANIAS v AUSTRALIAN COMMUNITY PHARMACY AUTHORITY, SECRETARY OF DEPARTMENT OF HEALTH AND FAMILY SERVICES and WEIR AND ALEXANDER
VG 79 of 1997
SUNDBERG J
MELBOURNE
18 JULY 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No VG 79 of 1997
)
GENERAL DIVISION )
BETWEEN:CHRIS BANIAS
Applicant
AND:AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
First Respondent
and
SECRETARY OF DEPARTMENT OF HEALTH AND FAMILY SERVICES
Second Respondent
and
WEIR and ALEXANDER
Third Respondents
JUDGE:SUNDBERG J
PLACE:MELBOURNE
DATED:18 JULY 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
Paragraph 1 of the order made 14 March 1997 be vacated.
The applicant pay the respondents' taxed costs of the application including reserved costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No VG 79 of 1997
)
GENERAL DIVISION )
BETWEEN:CHRIS BANIAS
Applicant
AND:AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
First Respondent
and
SECRETARY OF DEPARTMENT OF HEALTH AND FAMILY SERVICES
Second Respondent
and
WEIR and ALEXANDER
Third Respondents
JUDGE:SUNDBERG J
PLACE:MELBOURNE
DATED:18 JULY 1997
REASONS FOR JUDGMENT
PHARMACEUTICAL BENEFITS LEGISLATION
Part VII of the National Health Act 1953 ("the Act") deals with "pharmaceutical benefits". Division 2 deals with the "supply of pharmaceutical benefits". Section 90, which is in Division 2, relates to "approved pharmacists". Sub-section (1) provides:
“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.”
An application under sub-s(1) must be referred to the Australian Community Pharmacy Authority ("the Authority"): sub-s(3A). Sub-section (3B) provides:
“An approval may be granted under this section in respect of an application to which subsection (3A) applies only if the Authority has recommended the grant of the approval, but the Secretary may refuse to grant an approval even if the grant has been recommended by the Authority.”
Section 98(1) requires the Secretary to cancel an approval granted under s90 when the approved pharmacist so requests.
The Authority is established by s99J. Its functions include considering applications made by pharmacists under s90 and recommending whether or not an application should be approved: s99K(1). Section 99L requires the Minister to determine the rules subject to which the Authority is to make recommendations under s99K(1).
On 2 May 1995 the Minister made a Determination under s99K(1) (No PB 6 of 1995) with effect from 10 May 1995. Paragraph 6 of the Determination is in part as follows:
“approval of a pharmacist under section 90 of the Act in respect of particular premises must be recommended if the pharmacy is already approved under section 90 of the Act in respect of other premises from which the pharmacist proposes to cease supplying pharmaceutical benefits immediately before the granting of the approval, if:
(a)the premises in respect of which approval is sought are situated not more than 1 kilometre, measured door to door by the shortest lawful access route, from the premises in respect of which the pharmacist is currently approved ....
...”
WEIR & ALEXANDER APPLICATION
On 27 April 1995 the partners of the firm Weir & Alexander applied under s90(1) for approval to supply pharmaceutical benefits at or from premises at the corner of Plenty and Gremel Roads, Reservoir by way of relocation of existing premises, and for cancellation of approval under s98 in respect of existing premises at 39 Grevelli Street, East Reservoir. The premises to which Weir & Alexander proposed to relocate was part of a shopping centre which had not yet been built. The application was referred to the Authority for consideration. On 9 May the Authority wrote to Weir & Alexander requesting "evidence of the distance from your current site, measured door to door by the shortest lawful access route, to your proposed premises". Under cover of a letter of 10 May to the Health Insurance Commission, Weir & Alexander provided a report from their surveyor, Peyton Waite. This letter and the report were forwarded to the Authority. The report was as follows:
•“Measurements were taken from the shop door at 39 Grevelli Street to the expected position of the door to the proposed new Dispensary at the Gremel Road/Plenty Road intersection.
•The route measured was the shortest practical public pedestrian route using the Oulton Crescent pedestrian access to the south-eastern corner of the Target Shopping Centre.
•The distance was measured and confirmed at 907.5 metres.”
On 9 June the Authority determined that the application should be granted, "subject to clarification of site", as par 6(a) had been satisfied. The material before the Authority when it made its decision consisted of the application for approval, the Authority's letter of 9 May, Weir & Alexander's letter of 10 May and the surveyor's report, and another letter of no present relevance. On 13 June the Authority wrote to Weir & Alexander requesting information as to the actual location of the proposed pharmacy within the shopping centre, and confirmation that the measurement in the survey report was in fact to the door of the proposed premises within the centre. The Authority asked for a detailed map of the route taken in measuring the distance, and noted that "it must be from the front door of the nearest other pharmacy to the door of the proposed pharmacy by the shortest lawful route". Weir & Alexander forwarded to the Authority a plan of the proposed premises which they had provided to the surveyor in order to determine the position of the new pharmacy's front door, and advised that the new address would be 870-900 Plenty Road, Reservoir. On 22 June the Authority wrote to the Health Insurance Commission advising that approval had been given to the relocation of the premises. On 27 June the Commission wrote to Weir & Alexander advising them that the Authority had recommended that their application be approved. Weir & Alexander were asked to contact the Commission when approval of the premises by the Pharmacy Board of Victoria had been obtained. When that happened, a new approval number would be allocated to them. The Board in fact approved the premises on 22 February 1996.
THE BANIAS PROCEEDING
On 27 February 1997 Chris Banias applied for an order of review of the Authority's decision of 9 June 1995 under s5(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The respondents to the application were the Authority and the Secretary. The grounds of the application were that
(a)the decision involved an error of law in that the Authority misconstrued the expression "shortest lawful access route" in par 6(a) of the Determination by interpreting it so as to include a route through private property where permission to use the route had not been given to any member of the public;
(b)there was no evidence or other material to justify the making of the decision in that there was nothing before the Authority on the basis of which it could reasonably be satisfied that the distance between the two premises, measured door to door by the shortest lawful access route, was not more than one kilometre;
(c)the Authority took an irrelevant consideration into account, namely the measurement of 907.5 metres along the shortest practical public pedestrian route (ie the Peyton Waite report);
(d)the Authority failed to take relevant considerations into account, namely that the owner of the Target land had not consented to members of the public having passage over it, and that the cars in the Target car park obstructed pedestrian passage from the Oulton Crescent entrance to the car park;
(e)the decision was so unreasonable that no reasonable person could have made it.
THE SUSPENSION ORDER
On 13 March 1997 Mr Banias applied for an order under s15(1) of the ADJR Act that the Authority's decision to recommend that approval be granted to Weir & Alexander in respect of the new premises be suspended and all proceedings under that decision be stayed. The material in support of the application disclosed that Mr Banias is a pharmacist who in December 1995 opened a pharmacy at 830 Plenty Road, Reservoir. He had been aware for some months that Weir & Alexander intended to move to the new premises, and he assumed that the distance between the existing premises and the new premises was less than one kilometre. However, in September 1996, on returning from the existing premises to his own, he noticed from the odometer in his car that he had travelled approximately one kilometre. Since the proposed new premises were a further 300 metres or so beyond his own premises, the distance between Weir & Alexander's present and proposed premises would have had to have been more than a kilometre. He then realised that the only way one could travel between the two premises by a route less than a kilometre was by going across land on which a Target store, a Coles Supermarket and a car park are located. The land is surrounded by a chain wire fence, though at its southern-most point, where Oulton Crescent meets the land, there is a space in the fence through which pedestrians may walk. Mr Banias produced a letter which the owner of the land had sent him stating that the car park "is not useable as a public thoroughfare, but on the other hand is useable by customers of Target, Coles and Liquorland". He also produced a letter from Target Australia Pty Ltd stating that the car park surrounding the Target store and the gateway from Oulton Crescent do not comprise a public thoroughfare. Mr Banias had commissioned a surveyor to measure the distances between the two Weir & Alexander premises by various routes. The surveyor's report showed that the only way in which one could travel between the two premises by a route of less than a kilometre was by traversing the Target land. On the basis of that and other material, on 14 March 1997 I granted the suspension and stay orders sought. I directed that a copy of the order and my reasons be served on Weir & Alexander so that they could apply to be joined as parties and seek appropriate relief including the lifting of the stay. On 24 April I ordered that Weir & Alexander be joined as respondents and directed that the matter be given a speedy hearing.
EVIDENCE AT TRIAL
In addition to the material filed in support of the suspension application, the following evidence was relied on at trial.
(a)Weir & Alexander
When the partners applied for approval, they examined the routes available to ensure that par 6 of the Determination was satisfied. They decided that the most direct, practical, convenient and likely route for their customers to travel from the residential area to the new premises would be via Oulton Crescent and across the car park. Mr Robert Weir, one of the partners, who has worked in the area for fifteen years, said that local residents have for many years considered the crossing of the car park to be a legitimate short cut to get to Plenty Road and the parkland and sports ground to the north of the Target Shopping Centre, that he has never heard of anyone being prevented from using the route, and that he has never seen any sign which purports to restrict access to the car park. The partners had conducted a survey of seventy seven residents of Reservoir East, which disclosed that nearly all of them used the Oulton Crescent access to the Target land as a shortcut, and that the vast majority did not use it solely to get to the Target store. In the time since the Authority granted approval in June 1995 the partners have entered into an agreement to lease the new premises, recruited additional staff, paid a deposit of $4000 on a new computer system costing $28,000 which is to be installed once the move has taken place, and made arrangements with a shopfitter to fit out the premises at a cost of about $90,000. On 10 April 1997 the landlord gave Weir & Alexander a notice that on 21 April the pharmacy premises would be available to them for fitting out. The fitting out period of six weeks would commence on that date, and the commencement date of the lease would be 2 June 1997 or such later date as the adjoining medical practice opened for business and commenced trading.
One of Weir & Alexander's customers, Marjorie Wightwick, gave evidence that her late husband was instrumental in persuading the Preston Council to provide a pedestrian access to the Target site at the northern end of Oulton Crescent. Since its opening it has been in constant use by residents, and is the primary route used to gain access to Target and the adjoining shopping area, as well as the tram route and the local secondary college.
(b)Banias
A solicitor with Coles Supermarkets Australia Pty Ltd produced two pages of Coles' lease of its supermarket site, from which it appears that the landlord is entitled to "close off the Centre or any access roads thereto for one period of twenty-four hours continuously during each calendar year for the purpose of preventing from arising any prescriptive public or private right of way to or access across any part of the Centre". In response to this Mr Robert Weir deposed that he was not aware of any occasion on which the Centre or any access road had been closed as permitted by the lease. He also said that the Coles Supermarket now opens twenty four hours a day, seven days a week.
OBJECTIONS TO EVIDENCE
Large parts of the affidavit material filed on behalf of Mr Banias and Weir & Alexander were objected to on various grounds. I have dealt with most of them in an earlier ruling. I deal now only with the objections based on the tender of material that was not before the Authority when it made its decision. This material consisted of the opinions of the owner of the Target land and of Target itself as to the public's right to traverse the land, Mr
Banias' surveyor's measurements of the routes through the Target land, the extract from the Coles lease, and Weir & Alexander's survey evidence.
In Szelagowicz v Stocker (1994) 35 ALD 16 at 22 Davies and Einfeld JJ said:
“... all the usual challenges to decisions by reference to the evidence or material are challenges which fall under s5(1)(e) or (f). These challenges are determined by comparing the decision and the reasons for the decision with the material which was before the decision-maker. They encompass challenges that the decision was perverse, was not such as could be reached by any reasonable decision-maker and so on. Section 5(1)(h) and (3)(b) deal with the circumstance where such a ground is not available. They provide a ground of review where there was before the decision-maker no evidence of a fact, the decision was based on the existence of that fact and the fact did not exist. On this ground, a decision may be challenged, but only if evidence is called which positively establishes that the fact did not exist. They do not permit evidence to be adduced to contradict either evidence or material which was before the decision-maker or an inference which was available to be drawn from that evidence or material.”
Earlier their Honours had said that s5(3) does not allow an aggrieved person to adduce additional evidence "so that the court determines for itself the issues of fact which were in dispute before the decision-maker": at 19.
Conformably with those passages, the opinions about the public's right to use the Target land, Mr Banias' surveyor's report, the extract from the lease, and the survey evidence are not admissible. In relation to the possible application of s5(3) to that material, I refer to what appears later in these reasons under the no evidence heading. In Loveridge v Pharmacy Restructuring Authority (1995) 39 ALD 103 at 106 Whitlam J refused to admit a surveyor's evidence about the distance between two premises on the ground that it had not been before the Authority.
“SHORTEST LAWFUL ACCESS ROUTE”
Subject to a "possible reservation" as to the need for the route to be permanent, Mansfield J in Australian Community Pharmacy Authority v Hanna (unreported, 6 February 1997) at 15 and 20 approved the following description of an "access route" for the purposes of par 6 of the Determination:
“A route generally available to be taken between approved premises and the proposed premises that could hypothetically be used by ordinary persons travelling that route.”
As to the "possible reservation", Mansfield J said at 21:
“I do not think a route is an access route if it can only be used for a short period each year, eg if the route is mostly underwater. That could not have been intended when the Rules were formulated. It would be irrational to
produce a conclusion on an application under s90 depending on whether the suggested access route was available to be used at the time of the application or at the time of the hearing or only for some portion of the year. Equally, the fact that a route - even a major roadway - is subject to occasional flooding would not have been intended to be excluded as an access route. It is, in my view, a matter for practical common sense. So long as the words "generally available" carry that import, then I think the formulation put forward by the ACPA is a correct one.”
The meaning of the word "lawful" depends on its context. In the phrase "shortest lawful access route" it may mean a route that is positively authorised, or one that is not forbidden. See Crafter v Kelly [1941] SASR 237 at 243. In Taikato v The Queen (1996) 186 CLR 454 at 460 Brennan CJ, Toohey, McHugh and Gummow JJ said that as a general rule, interpreting "lawful purpose" in a legislative provision to mean a purpose that is not forbidden, rather than one which is positively authorised, by law best gives effect to the legislative purpose of the enactment. However, in that case there were indications in the purpose, context and subject matter of the provision in question that a "lawful purpose" was one that was positively authorised by law.
In the present case the context supports what their Honours called the "general rule". Paragraph 6 of the Determination is concerned with access routes from one premises to another. Had the intention been to restrict the routes in question to public roads and footpaths, it would have been easy to have said so. That it was not said shows a contemplation that access might be obtained over private land. If a land owner expressly invites others to walk over his land, their use of the way is not only not forbidden, it is positively authorised. Similarly with an express licence to enter private property. The use of private land pursuant to the licence is not only not forbidden, but positively authorised. But invitations and licences can arise by implication, without any positive authorisation. Thus a licence may be given by implication when the public habitually uses land to the knowledge of the occupier and no steps are taken to prevent the use. See Lowery v Walker [1911] AC 10. In these cases it is more appropriate to describe the use of the land as "not forbidden" rather than as "positively authorised".
THE PRESENT CASE
(a)access route
The Authority had before it a surveyor's report which stated that the shortest practical public pedestrian route using the Oulton Crescent pedestrian access to the south-eastern corner of the Target Shopping Centre was 907.5 metres. On the basis of that report the Authority was entitled to conclude that the route measured was an "access route" from the existing premises to the new premises. Complaint was made that the surveyor did not use the exact language of the determination - "shortest lawful access route". But that is neither here nor there if the surveyor's report was directed to the proper question, which it was. The surveyor's word "public" reflects the phrase approved by Mansfield J in Hanna - "could hypothetically be used by ordinary persons travelling that route". The surveyor's use of the expression "public pedestrian route" rather than "access route" is of no significance. It is clear that what the surveyor was reporting on was the measurement
of a route between the two premises that was available to the public. Cf the description approved in Hanna.
The fact that the surveyor spoke of a "pedestrian route" rather than a "route" or "access route" is again of no significance. Paragraph 6 of the Determination speaks of the shortest lawful access route, and the surveyor reported that the shortest route was in fact a pedestrian route - one only available to those who walked between the two premises.
(b)“lawful”
The surveyor's report did not employ the word "lawful". However, the meaning that is to be attributed to the word, namely "that which is not forbidden", is adequately rendered by the surveyor's word "public" - that is to say, a route which the public is not forbidden to use.
PERMANENCE
It will be recalled that in Hanna Mansfield J referred to the need for permanence in a route, and gave flooding for a substantial period each year as an example of a route that would not have been contemplated by par 6 of the Determination. Reliance was placed by counsel for Mr Banias on the following passage from the decision of the Administrative Appeals Tribunal in Hanna, which was adopted by Mansfield J at 24:
“The Tribunal finds that it is nonsensical to expect a person to travel diagonally across the Colonnades car park in a straight line when the car park is in use. To require such would be to overlook the existence of trees, aisles and parked cars. There may be occasions when it would be possible to take a more or less diagonal route through the car park, but the Tribunal cannot accept an inexact route which will change every few minutes according to whether cars are placed as obstacles in the way of such a path. The Tribunal believes that for a route to qualify as the shortest lawful access route there must be a degree of permanency which is not present in these routes. Hence the shortest lawful access route from the premises to the pharmacies at the Colonnades must follow the indicated roads, pedestrian access ways and paths. Any other route is subject to change and therefore inadequate for the purpose of determining whether the 2 kilometre route is met. This applies in particular to applicants when the satisfaction of the 2 kilometre route is a borderline situation. The 1995 Rules have prescribed 2 kilometres as an arbitrary distance requirement which must be met, and therefore routes which are subject to constant fluctuation should not be accepted as sufficient.”
Having approved this passage Mansfield J added:
“The passage of cars and the parking of cars so as to obstruct pedestrian passage is exactly what the car parking areas are designed to do. The Rule does not, in my view, contemplate a circumstance whereby a pedestrian
should have to wait, to dodge and weave, to run or pause to avoid traffic movement in the conception of access route.”
In assessing the relevance of these passages to the present case one must appreciate the way in which the distance issue arose in Hanna. Paragraph 5 of the Determination requires approval of a pharmacist under s90 in respect of particular premises to be recommended if, amongst other things,
“(a)(i) those premises are situated at least 2 kilometres, measured door to door by the shortest lawful access route, from the nearest other premises in respect of which a pharmacist is approved under s90 of the Act ....”
The car parking area was laid out so that vehicles could not drive diagonally across it. The door to door distance by car between the two premises was marginally over two kilometres. Using designated pedestrian pathways within the car park, the walking distance was 2077 metres. The walking distance cutting diagonally across the car park was 1969 metres. There were also three informal pathways or tracks across paddocks the use of which reduced the distance to under two kilometres. The Tribunal concluded that the shortest lawful access route was in excess of two kilometres so that the premises fell within par 5(a)(i). It excluded the option of diagonally traversing the car park, and his Honour held that it was correct to do so. The Tribunal also excluded the options of using the informal pathways. One was obstructed. The Tribunal excluded the others for reasons which included the fact that some elderly, frail and disabled persons could not safely use them. This his Honour held was an error. It was possible, however, that the Tribunal would have reached the same conclusion quite apart from this error, and the matter was remitted to it for further consideration. The informal routes are of no significance to the present case. The car park routes are. One involved cutting diagonally across the car park, a distance of less than two kilometres. The other route, using pedestrian walkways within the car park, was more than two kilometres. It was therefore essential to determine whether the diagonal route was available. And it was held that it was not, for the reasons the Tribunal and his Honour gave.
In the present case the material before the Authority did not require a choice between routes. All that was before the Tribunal was a report that a route which was less than one kilometre was the shortest practical public pedestrian route using the Oulton Crescent pedestrian access to the south eastern corner of the Target Shopping Centre. There was no evidence that that route involved an impermissible diagonal crossing of the car park. There was no reason for the Authority to assume that the route did involve that.
GROUNDS OF REVIEW
I have already summarised the grounds of review in a general way, but it is necessary to look at them more closely.
(a)errors of law
Three errors are alleged. The first is that the Authority interpreted the words "lawful access route" as including a route over private land the owner of which had not consented to the public using it. The Authority did not make any such error. As I have pointed out, the Authority was entitled on the material before it to conclude that the public was not forbidden to use the route over the Target land.
The second error complained of is that the Authority misconstrued the phrase "lawful access route" by not interpreting it as involving a right of passage which is not dependent on the leave or licence of a third person. No such error was made. In the context of par 6 of the Determination the word "lawful" does not mean positively authorised by law. It means "not forbidden" by law.
The third error asserted is that the Authority failed to interpret the phrase as requiring that the leave or licence of the occupier of the land permit passage by any member of the public "for a substantial period from the time when permission ... was sought". The Authority was aware that what was put to it as the "shortest practical public pedestrian route" travelled through the Target land. There is nothing to indicate that it considered that the term "access route" did not include the element of "continued availability": cf Hanna at 25. Indeed, the requirement of "continued availability" was met by the surveyor's statement that the route in question was a "public pedestrian route".
(b)no evidence
Section 5(3)(a) of the ADJR Act provides that the "no evidence" ground (sub-s(1)(h)) is not made out unless the decision-maker is required by law to reach the decision only if a particular matter is established, and there was no evidence or other material from which the decision-maker could reasonably be satisfied that the matter was established. The argument was that the Authority was required to reach its decision only if it was established that the shortest lawful access route between the two premises was less than one kilometre, and there was no evidence or other material from which it could reasonably be satisfied that that route was less than one kilometre. The Peyton Waite report was ample evidence for the Authority's conclusion.
Alternatively it is said that there was no evidence before the Authority from which it could reasonably be satisfied that the occupiers of the Target land consented to members of the public passing over the land. The surveyor's report that the route was a public pedestrian route using the Oulton Crescent pedestrian access to the Target Shopping Centre was sufficient to enable the Authority to be satisfied that the occupiers of the Target land consented to members of the public passing over the land, or more accurately, that passage over the land was not forbidden to the public.
(c)improper exercise of power - irrelevant considerations
It is contended that the Peyton Waite report was an irrelevant consideration because it referred to a "public" and not a "lawful access" route. The Authority was entitled to treat
the report as stating that the public was not forbidden to use the route. It was thus a "lawful" route in the sense described above.
(d)improper exercise of power - relevant considerations
It is said that the Authority failed to take into account four relevant considerations. The first is that the occupier of the Target land had not consented to the public passing over the land. I have rejected this contention for the reasons given under (a) above. The other considerations are
that the passage of cars and the parking of cars on the Target car park obstructed pedestrian passage from the Oulton Crescent entrance;
that a continuously available access route across the Target land did not exist, and
that there was no indicated pedestrian route across the Target land.
There was no evidence before the Authority that any of these "considerations" existed. Indeed the Peyton Waite report, which was before the Authority, is inconsistent with considerations (i) and (ii). In an attempt to avoid this difficulty, it was contended that the Authority should have made further inquiries about the "considerations" before making a decision, and it was said that it was "unreasonable" in the relevant sense for the Authority not to have made them. Cf s5(2)(g). Reliance was placed on Teoh v Minister for Immigration (1994) 49 FCR 409 at 413, Videto v Minister for Immigration (1985) 8 FCR 167 at 178 and Lek v Minister for Immigration (1993) 45 FCR 418 at 435-436. In Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-170 Wilcox J said:
“The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.“
Whether a decision-maker is obliged to make enquiries depends on the nature of the material before him, the importance of the decision to be made and its consequences for the person to whom the decision relates: Videto at 178-179 (a deportation case). See also Minister for Immigration v Surjit Singh (unreported, Full Court, 7 May 1997).
The Authority consists of five part time members. It has to consider applications in respect of premises all over Australia. Without purporting to laying down any absolute rule, it would in those circumstances be unreasonable to expect the Authority to inquire into the layout and circumstances of particular shopping centres in order to determine whether particular routes through them are likely to be impeded by parked cars, passing
traffic and garden areas. Cf Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589 at 593. In the present case there was, in my view, no obligation to make the enquiries suggested, and the Authority's failure to make them was not unreasonable in the relevant sense.
(e)improper exercise of power - unreasonableness
It follows from what has been said about the other grounds that there is no substance in this ground.
CONCLUSION
The application should be dismissed.
I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg
Associate:
Dated:18 July 1997
Counsel for the Applicant: N Moshinsky QC and I Waller
Solicitors for the Applicant: Woolf Klooger
Counsel for the First and Second Respondents: T Ginnane
Solicitor for the First and Second Respondents: Australian Government Solicitor
Counsel for the Third Respondent: R Tracey QC and P Holdenson
Solicitors for the Third Respondent: Moores
Dates of Hearing: 25 & 26 June 1997
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