Calo and Australian Community Pharmacy Authority
[2003] AATA 654
•11 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 654
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1653
GENERAL ADMINISTRATIVE DIVISION ) Re ROCCO CALO Applicant
And
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondent
DECISION
Tribunal Senior Member M D Allen Date11 July 2003
PlaceSydney
Decision The decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision namely THAT it is recommended to the Secretary Department of Health and Ageing that Rocco Calo be approved to supply pharmaceutical benefits in respect of premises to be located at Suite 11 Westmead Private Hospital Specialist Medical Centre, corner of Mons and Darcy Roads Westmead NSW 2145. (Sgd) M D Allen
......................................
Senior Member
CATCHWORDS
PHARMACEUTICAL BENEFITS - application to supply pharmaceutical benefits from premises contained within a Private Hospital - meaning of the words "to treat or accommodate or lodge" - day surgery patients to be counted as patients treated by the hospital.
National Health Act 1953 - s90, s99J, s99K, s99L
Private Hospitals and Day Procedure Centres Act 1988 (NSW) - s15, s37
Pharmacy Guild of Australia & Others v Australian Community Pharmacy Authority & Others 70 FCR 462
Collector of Customs v Agfa-Gevaert Ltd 186 CLR 389
Maunsell v Olins [1975] AC 373
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591
Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc 48 NSWLR 548
REASONS FOR DECISION
Senior Member M D Allen
1. By application made 1 November 2002 the Applicant sought review of a decision by the Respondent made 25 October 2002 recommending that the Secretary to the Department of Health and Ageing reject the Applicant's application to supply pharmaceutical benefits from established pharmacy premises situated at Suite 11 Westmead Private Hospital Specialist Medical Centre, corner of Mons and Darcy Roads Westmead NSW 2145.
2. The said application for review came on for hearing before me on 30 June 2003. At that hearing the following documents were taken in as exhibits and marked as follows:
Exhibit
Description
date
T1 – T12
Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
variousA1
Applicant's Statement of Facts and Contentions
undated
A2
Statement of Carol Bryant
30 June 2003
R1
Respondent's Statement of Facts and Contentions
26 June 2003
3. The Respondent is a statutory body established pursuant to section 99J of the National Health Act 1953 (as amended). Amongst its functions as prescribed by section 99K National Health Act are the following:
“(1) …
(b) to make in respect of an application under section 90:
(i)a recommendation whether or not the applicant should be approved under that section in respect of particular premises; and
(ii)if an approval is recommended, recommendations as to the conditions (if any) to which the approval should be subject.”
Section 99K then provides inter alia:
“(2) In making a recommendation under subsection (1), the Authority must comply with the relevant rules determined by the Minister under section 99L.
(3) All recommendations of the Authority under subsection (1) are to be made to the Secretary. (Being the Secretary to the Department of Health and Aging).”
Section 90 of the National Health Act provides inter alia:
“(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.
…
(3A) Subject to subsection (3AA), an application under this section must be referred to the Authority.
…
(3B) 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.
…
(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.”
4. Section 99L of the Act states:
“(1) The Minister must, by writing, determine the rules subject to which the Authority is to make the recommendation under subsections 99K(1).
(2) A determination under subsection (1) is a disallowable instrument for the purposes for section 46A of the Acts Interpretation Act 1901.”
5. The scheme of the Act as to the supply of pharmaceutical benefits and the restrictions imposed upon the number of premises from which such supply could occur was set out in detail by Branson J in Pharmacy Guild of Australia and Others v Australian Community Pharmacy Authority and Others 70 FCR 462 at 465.
6. On 11 July 2000 the Parliamentary Secretary to the then Minister for Health and Aged Care pursuant to subsection 99L(1) of the National Health Act made Pharmaceutical Benefits Determination No PB8 of 2000. Clause 7 of that Determination read inter alia:
"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 either:
...
(b) the premises are situated within premises that are a private hospital within the meaning of the Health Insurance Act 1973, provided that:
(i)the private hospital has not less than 150 beds; and
(ii)there are no other premises within the premises of the private hospital in respect of which an approval under section 90 of the Act is in force; and
(iii)the governing body or proprietor of the private hospital is not approved under section 94 of the Act in respect of that hospital."
7. By PB9 of 2002 the Minister for Health and Ageing amended PB8 of 2000. By paragraph 8 of PB9 of 2002, paragraph 7 of PB8 of 2000 was amended to read:
“(b) the premises are situated within a private hospital being a private hospital within the meaning of the Health Insurance Act 1973 and being registered or licensed as a private hospital or a private health establishment under State or Territory legislation, provided that:
(i)either:
(A)the private hospital or private health establishment has not less than 150 beds in respect of which it is registered or licensed under State or Territory legislation to render health services to patients; or
(B)the maximum number of patients the private hospital or private health establishment is registered or licensed under that State or Territory legislation to treat or accommodate or lodge at any one time is not less than 150; and
(ii)…
(iii)…”
8. It was common ground between the parties that on 7 November 2001 the New South Wales Department of Health pursuant to the Private Hospitals and Day Procedure Centres Act 1988 (NSW) (Act No 123 of 1988) issued a licence to Alpha Westmead Private Hospital Pty Ltd in respect of the establishment known as Alpha Westmead Private Hospital located at the corner of Mons and Darcy Roads, Westmead NSW 2145, as a Private Hospital.
9. Whereas in section 3 the definition section of the Private Hospitals and Day Procedure Centres Act a distinction is drawn between day procedure centres and private hospitals, subsection 37(2) of the said Act states:
" A day procedure centre is not required to be licensed if it is conducted in the same premises as a licensed private hospital and by the same person who conducts the private hospital."
10. The licence issued to the Alpha Westmead Private Hospital on 7 November 2001 after setting out the classes of treatment in respect of which the licence was issued then went on to state:
"The maximum number of patients who may be lodged at any one time is 136 patients in 102 wards."
11. The licence then goes on to provide:
"This licence is subject to the conditions set out in the Schedule hereto and remains in force until cancelled by the Director-General".
12. The Schedule to the said licence contains a number of conditions including the following:
"Day Surgery Unit (12 Trolleys). Chemotherapy Suite (3 Recliner Chairs and 1 Trolley)."
13. The dispute between the parties was essentially one of statutory interpretation. The Applicant contended that with the 12 Day Surgery Trolleys and 3 Recliner Chairs and 1 Trolley in the Chemotherapy Suite, the Alpha Westmead Private Hospital conformed to paragraph 7(b) of PB8 of 2000 (as amended) in that the maximum number of patients it was licensed to "treat or accommodate or lodge" at any one time was not less than 150.
14. For its part, the Respondent contended that the words "to treat or accommodate or lodge" were used to cover the words in the various different Acts regarding the licensing or registration of private hospitals in the several States and Territories of the Commonwealth.
15. In support of this contention the Respondent drew attention to various State and Territory Acts or Regulations. For example the West Australian Statute which used the words: "number of patients who may be treated at any one time" comparing it to the Victorian Statute which reads inter alia: "the number of beds that may be used for specified kinds of prescribed health services" cf the South Australia Statute which uses the phrase: "fixing the maximum number of hospital beds that may be provided pursuant to the licence", whereas the Australian Capital Territory Regulation reads: "the maximum number of patients which may be lodged in the hospital at any one time". This approach however requires going behind the plain words of the instrument in question.
16. The Applicant says however that the words "to treat or accommodate or lodge" are not terms of art but normal English words and are to bear their ordinary or common meaning. For example in the Macquarie Dictionary 3rd edition the word "treat" is defined in meaning number 3 as "to deal with (a disease, patient, etc.) in order to relieve or cure”. In the same dictionary the word "accommodate" is given the following meanings: number 2 "to provide with room and sometimes with food and entertainment", number 5 "to find or provide space for (something)", whereas "lodge" has as meaning number 11 "to furnish with a habitation or quarters, especially temporarily" cf Gould’s Medical Dictionary 4th edition "Treat - to combat disease by the application of remedies; to care for medically or surgically".
17. The Respondent submitted that the licence issued by the NSW Department of Health was only the first page of the document that is reproduced at Document T9.5 and T9.6. That is, whereas the schedule to the licence imposes conditions upon the license, the licence itself only refers to 136 patients. I do not find this submission convincing. I find that the conditions are part of the licence, see particularly section 15 of the Private Hospitals and Day Procedure Centres Act which states:
"The Secretary may issue a licence subject to such conditions as may be specified in the licence".
18. The words of section 15 are that conditions as may be specified in the licence that is to say in normal English usage they are part and parcel of the said licence not something ancillary thereto.
19. Pharmaceutical Benefits Determinations made pursuant to subsection 99L(1) of the National Health Act 1953 are subordinate legislation and are therefore subject to the general principles relating to the interpretation of Acts of Parliament. (see Collector of Customs v Agfa-Gevaert Ltd 186 CLR 389 at 398). There was no evidence that the words in PB8 of 2000 are used in any trade or technical sense albeit that the Respondent states they are used to encompass the various different wordings in the several state Acts.
20. In Collector of Customs v Agfa-Gevaert Ltd supra at p398 the High Court specifically approved the statement of Lord Simon of Glaisdale in Maunsell v Olins [1975] AC 373 at 391 namely:
“Statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances."
21. This Statement of Principle can be compared to what his Lordship said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 645:
"Courts of construction interpret statutes with a view to ascertaining the intentions of Parliament expressed therein. But, as in interpretation of all written material, what is to be ascertained is the meaning of what the Parliament has said and not what Parliament meant to say."
22. That is not to say however that the purpose of an Act or subordinate legislation is to be ignored. As pointed out by Spigelman CJ in Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc 48 NSWLR 548 at 575:
"The Australian law of Statutory interpretation requires a court to consider context in the first instance and not merely after 'ambiguity' is identified…"
But as Lord Reid said in Black-Clawson Ltd supra at p613:
"We often say that we are looking for the intention of Parliament but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said."
23. Subparagraph 7(b)(i)(B) was inserted into PB8 of 2000 by amendment dated 10 June 2002 and the insertion of the said subparagraph (B) was obviously intended to broaden the class of private hospital which would be permitted to contain an in-hospital pharmacy. As stated above there is no indication in the instrument either in its original form or as amended, that the words of subparagraph (B) are used in any technical sense.
24. The word "lodge" implies a stay in a facility of more than a short period. Cf the dictionary meaning number 11 quoted above. The reference to habitation or quarters is not indicative of time spent in a day surgery. The word "accommodate" however is capable of meaning a short period, cf the dictionary meaning number 5. The nuances of the word can be seen in the phrase "this vehicle can accommodate five passengers". No one would suggest that meant anything but that the said vehicle was able to contain five people, with no temporal connotation.
25. On the other hand the word "treat" is a normal English word and it is clear that with 136 patients in beds in the hospital plus patients in the 12 Trolleys in Day Surgery and the 1 Trolley and 3 Recliner Chairs in the Chemotherapy Suite, the hospital is licensed to treat at any one time 152 patients. In other words, that at any one time that hospital will have 152 inmates.
26. If the draftsman of the said amending subparagraph had wished to indicate that the private hospital had the capacity to contain 150 long stay patients as opposed to day surgery patients then it would have been easy enough to say so. Further if, as argued by the Respondent, the amendment was referable to State Legislation then it is clear that the NSW Legislation makes provision in section 37 of the Private Hospitals and Day Procedure Centres Act 1988 for a private hospital to conduct a day procedure centre.
27. For these reasons therefore the decision under review is SET ASIDE. The Tribunal substitutes in lieu of the decision set aside its decision namely that it is recommended to the Secretary of the Department of Health and Ageing that Rocco Calo be approved to supply pharmaceutical benefits in respect of premises to be located at Suite 11 Westmead Private Hospital Specialist Medical Centre, corner of Mons and Darcy Roads Westmead NSW 2145.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Nathaniel Wills .......................................................................................
AssociateDate of Hearing 30 June 2003
Date of Decision 11 July 2003
Counsel for the Applicant Mr S Burley with Mr J O‘Sullivan
Solicitor for the Applicant Ann Mihulka and Associates
Solicitor for the Respondent Mr A Markus, Australian Government Solicitor
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