Crowe & Ors v The Commonwealth of Australia

[1993] HCATrans 133

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S226 of 1992

B e t w e e n -

REGINALD CHESTER CROWE,
JOHN LOUIS MARONESE,
EXTENDED HOURS PHARMACIES

ASSOCIATION

Applicants

and

THE COMMONWEALTH OF AUSTRALIA

First Respondent

J.M. RIORDAN, J.R. RICHARDSON,

G. MILLER, M. O'BRIEN, and

I. McCAULEY (constituting the

Pharmaceutical Benefits

Remuneration Tribunal)

Second Respondents

THE PHARMACY GUILD OF AUSTRALIA

Third Respondent

Application for special leave

to appeal

DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 21 MAY 1993, AT 11.44 AM

Copyright in the High Court of Australia

Crowe 1 21/5/93

MR D.F. JACKSON, QC: If the Court pleases, I appear with my

learned friend, MR A. HUGHES, for the applicants.

(instructed by Pigott Stinson Stuart Thom)

MR D.M.J. BENNETT, OC: If the Court pleases, I appear with

my learned friend, MS R.M. HENDERSON, for the first

respondent. (instructed by the Australian

Government Solicitor)

MS L.M. BYRNES: If the Court pleases, I appear as Sydney

agent for the third respondent. (instructed by

Cornwall Stodart)

DAWSON J: Yes, Mr Jackson.

MR JACKSON:  May I hand to the Court copies of our outline

of submissions. With it is the relevant part of
the Act which has been extracted, together

with - - -

DAWSON J: Before you commence I should say that I am

advised by the Registrar that the Australian

Government Solicitor who acts for

Mr John L. Maronese, that is the second respondent

to these proceedings, does not wish to appear to

have representations made on their behalf and will

abide by the orders of the Court save as to costs.

MR JACKSON:  Your Honours, I need to go, if I may, to the

terms of the statute for a moment and may I do so

as briefly as possible with a view to taking

Your Honours to the ultimate question which
Your Honours will see set out in paragraphs 6 and 7

of our outline of submissions.

Your Honours, Division 3 of Part VII of the

National health Act is concerned with payments to be made to pharmacists by the Commonwealth for the supply by the pharmacists of pharmaceutical
benefits and, notwithstanding the description

"pharmaceutical benefits", that term means the

actual drugs and medicines which are supplied.	That that is so appears in section 84, which is at
page 177 of the pamphlet copy of the Act, where
Your Honours will see the definition of the term
"pharmaceutical benefit" and then, at page 193, in
section 85 where Your Honours will see, in
subsection (1) and the opening words of (2) that the benefits are to be provided in respect of the drugs.

When a pharmacist supplies a pharmaceutical

benefit as so defined the pharmacist is entitled to

receive from the Commonwealth some or all of what is described as the Commonwealth price determined in respect of the drugs or medicines. That that is

so appears from section 99(2) at page 217 of the

Crowe 2 21/5/93

pamphlet. Your Honours will see in the fourth

line of subsection (2) there is the entitlement "to

be paid by the Commonwealth". Then, Your Honours,

paragraphs (a) and (b) effectively say he gets

either the whole or part of it.

The term "Commonwealth price" is defined by

section 99(1) at page 216 and Your Honours will see

in particular that section 99(l)(a) says that it

means:

the Commonwealth price ascertained in
accordance with a determination in force under

subsection 98B(l);

And, Your Honours, that takes me to the first of

the provisions material for present purposes.	The
language used in section 99(l)(a), that is "the

Commonwealth price ascertained in accordance with a

determination in force under subsection 98B(l)",

that language is used also in section 98B(l) which

appears at page 210. What Your Honours will see

there is that section 98B(l) says that:

The function of the Tribunal is to

determine the manner in which the Commonwealth price of all or any pharmaceutical benefits is to be ascertained for the purpose of
payments -

in question. The Tribunal to which reference is made is the Pharmaceutical Benefits Remuneration

Tribunal which is established by section 98A(l) and

in in that is in performing the section 98B(l) task, the

ascertaining the manner which the

Tribunal is obliged to follow some directions which

are referred to in section 98B(2). If I could go

there very briefly indeed, Your Honours will see

that:

A manner determined under subsection (1)

shall:

(a) ..... take as a basis:

Your Honours will see "approved price" is referred

to.	Then in (b) a "basic wholesale price", and
then	( c):
provide for the addition of such fees and
other amounts as are determined by the
Tribunal.

Because of the definitions of the terms in (a) and

(b) of section 98B(2), those amounts are fixed by

persons other than the Tribunal - that is because

Crowe 3 21/5/93

of the definitions in subsection (3), and in the result the area of discretion which the Tribunal

has relates to the factor referred to in 98B(2)(c)

which, to put it shortly and somewhat inaccurately,

is what does the pharmacist get in respect of his
own costs and profit on top of the basic cost of
the goods.

That 98B(2)(c) is really the matter with which the Tribunal under 98B(l) is concerned is reflected

in subsection (4) of 98B where you will see the

reference to paragraph (2)(c), and also,

Your Honours, in 98B(5) and in 98BD(2), which is at page 214, where Your Honours will see that it

refers to:

(a) determines fees or other amounts referred

to in paragraph 98B(2)(c);

And then the same with paragraph (b). At the time of the events in question here the Tribunal was

engaged on an investigation under section 98B.

That appears in the primary judge's reasons for

judgment at page 9, line 33, in a passage which

goes through to line 12 on page 10. Your Honours

will see in that passage that on page 10, about

line 5, he speaks of there being:

inquiries and reports on other matters within

the Tribunal's statutory responsibilities.

These include ..... Data Base Inquiries which were designed, inter alia, to provide means

for determining criteria pursuant to section

98B(4).

Then he refers to two such inquiries, that later

one is 20 December 1990, which is the inquiry

presently relevant.

If we could move on from that, the Tribunal's

procedures are governed by section 98BC and they

appear at page 214. It is clear, Your Honours,

first, that they were required to be fair, to put

it shortly, in those procedures and, secondly, that

its proceedings were to be conducted in public.

The first of those matters appears from

section 98BC(l)(c) and also 98BC(l)(b), the

reference to "as it thinks just". And the

requirement for the hearing to be in public is

section 98BC(2) which says that:

Subject to subsection (3) -

which is not presently material -

a proceeding before the Tribunal shall be

conducted in public.

Crowe 4 21/5/93

The Tribunal, in addition to the functions

conferred by section 98B, had functions to which

section 98BC was also applicable. For example,
there was provision for the making of a report
under section 98C(2) and also there was provision

for the making of inquiries under section 98BA(l), page 212. Section 98BA(l) is the second provision of importance.

Your Honours will see from 98BA(l) that the

Tribunal's function under that is to:

hold an inquiry to ascertain whether the

Commonwealth price of all or any

pharmaceutical benefits should be varied.

Now, the function under that provision has, of

course, some similarities with that contemplated by

98B(l), but it is different in a number of

respects. The first is that pursuant to that

provision the Tribunal simply makes a report which

has no binding effect. That that is so appears

from section 98BD(l) and section 98BD(3).	The
situation is different in the case of a
determination made under 98B(l) because

Your Honours will see that it becomes effective by

virtue of section 98BE.	Your Honours, I am sorry
to have put that somewhat tediously.	What I am

trying to say is that under 98B you get a binding

determination; under 98BA you get a report.

DAWSON J:  I am not sure that I have grasped what the

difference is between the two inquiries; 98BA(l)

and 98B(l).

MR JACKSON:  Your Honour, I am sorry, I was going to say two

things about them. The first is that under 98B(l)

you get a determination which is binding.

DAWSON J:  A determination of what?

MR JACKSON:  A determination of the manner in which the

Commonwealth price is to be ascertained, which

really means a determination of matters referred to

in section 98B - - -

DAWSON J: Really it is just a determination of the margin

which the pharmacist gets.

MR JACKSON:  Yes. But, Your Honour, that results in a

determination. Now, under 98BA, a report is made.

In making of the report the Tribunal is not subject to the constraints of 98B(2) and it might, for

example, investigate whether any amount in
98B(2)(a) or (2)(b) is something that it would

recommend should be changed.

Crowe 5 21/5/93

DAWSON J: That is the sort of basic price?

MR JACKSON:  Yes. Because the basic prices are determined

by agreement. between, in effect, the Commonwealth

and the Pharmacy Guild or suppliers and it might

say, well, something that was an expensive drug to
produce is now mass produced and so the unit cost
should go down and you should terminate that

agreement and arrive at a new one.

DAWSON J:	I follow.
MR JACKSON: Your Honours, so there is a difference.	If I

could turn then very briefly to the history of the

matter which gave rise to the present issue. It

appears at page 13 in the primary judge's reasons

at line 4 in a passage which goes through to

line 23. What it was was this, Your Honours. In

March 1990 the price inquiry was advertised. In

July the Commonwealth said it had reached an

agreement with the Pharmacy Guild. Now, that is an agreement that had no statutory backing, if I could

put it loosely, Your Honours. It sought a hearing

to give effect to that. Now, Your Honours, there

was a report on 30 August by which the Tribunal did

not accept it and then the next event was that

section 98BAA came into force.

Your Honours will see at page 21 of the

record, the top of the page, that it came into

force on 30 October 1990 and I will come back to

its terms, if I may, in just a moment. The events

which happened after it came into force appear at

page 22 line 1 through to page 23 line 27. What

Your Honours will see is that an agreement was

reached with the guild which, it was contended, was

an agreement fitting within 98BAA, to which I will

come. Technically that was wrong because the

agreement was made with the wrong person. A new
agreement was entered into and Your Honours will

see that referred to at page 22 line 19, the third

agreement. At the bottom of page 22 the Tribunal

was asked to give effect to it and to cancel the

public hearing which was then listed for

18 December.

To put it shortly, the events which happened

after that were that the Tribunal cancelled its

hearings, made a determination without a further

public hearing which said that the new agreement

came into effect on 1 January 1991 and the terms of

the determination appear at page 84 line 24 through

to page 85 line 13. May I ask Your Honours to note

a couple of things about it. The first is that as
appears from the top of page 85, it is expressed to

be "In pursuance of sub-section 98B(l)"; it is

expressed to be a determination of the Commonwealth

Crowe 6 21/5/93

price or the manner of the ascertainment of the

Commonwealth price; and it is expressed to come

into operation on 1 January 1991.	Your Honours,
the agreement -

GAUDRON J: Did that have something else annexed to it?

MR JACKSON: It had, yes, Your Honour, various - - -

GAUDRON J: Schedule of fees or something.

MR JACKSON:  The agreement which had been entered into

contained a clause 7 which made it a conditional

agreement. The terms of clause 7 appear at page 87

and Your Honours will see at about line 3 it is

said:

This Agreement is conditional upon a

determination being made by the Tribunal

pursuant to section 98B of the Act giving

effect to it.

Then secondly:

This Agreement will commence on the date that

such a determination is made ..... and it will

endure for a period of 4 1/2 years from the

commencement date.

Your Honours, could I come then to section 98BAA

which is the critical provision. Section 98BAA(l)

opens with words saying:

Despite anything else contained in this Part,

where the Minister -

Your Honours, could I just pause to say that there

is a subsequent amendment which adds the words

"(acting on behalf of the Commonwealth)", but they

do not matter for present purposes -

entered into an agreement in relation to the	and the Pharmacy Guild of Australia ..... have
manner in which the Commonwealth price of all
or any pharmaceutical benefits is to be
ascertained for the purpose of payments to
approved pharmacists in respect of the supply by them of pharmaceutical benefits, the
Tribunal, in making a determination under subsection 98B(l) while the agreement is in force, must give effect to the terms of that
agreement.

Your Honours, that is the first provision. The

second provision should perhaps be subsection (3)

rather than (2) in a sense. It says that:

Crowe 21/5/93

Section 98BA does not apply while there is in

force an agreement ..... except so far as

otherwise provided in that agreement.

Then subsection (2) deals with a pending inquiry

and it says pending inquiry under 98BA and says the

Tribunal must terminate that inquiry.

Now, Your Honours, the condition of the

operation of section 98BAA(l) and, indeed, of the

other two provisions is that there be an agreement

of the nature referred to in 98BAA(l). An issue

which must arise in any proceeding under 98B(l) -

and Your Honours, I will return to what I said then

in just one second - is whether the agreement

satisfies that description because Your Honours

will see that section 98BAA(l) refers to

determinations under 98B(l). It does not take away

any power to make a determination; it simply

requires that the determination, while an agreement

is in force, give effect to the agreement.

An issue which arises in proceedings under 98B(l) is whether the Tribunal's powers are

constrained by the existence of such an agreement.

A question involved in determining that issue is

whether there is such an agreement. Now,

Your Honours, there is absolutely, in our submission, no reason why section 98BC(2), for

example, the requirement that the proceeding before

the Tribunal be conducted in public, does not apply to the hearing of that question, namely whether the

agreement is one to which 98BAA applies.

GAUDRON J: Was it held otherwise?

MR JACKSON:  Yes, it was, Your Honour. I am sorry, it was

held that there was an agreement.

GAUDRON J: Did not the Tribunal, in fact, have an inquiry

and invite submissions as to whether there was an

agreement of that kind?

MR JACKSON:  Your Honour, what it did was to invite written

submissions. It did not have a hearing in public.

It declined to have a hearing in public and,

Your Honour, I will say a couple of things in

addition to that in a moment, but its decision on

that question, in any event, was by no means

unexaminable. But, Your Honour, it was obliged, we

would submit, in terms of 98BC(2), to have that

question heard in public and I will come to the

reasons for that - - -

GAUDRON J: For proceedings to be conducted - where do you

take from that that there cannot be written

Crowe 21/5/93

submissions? We conduct our proceedings in public

and have written submissions all the time.

MR JACKSON:  Your Honour, the Tribunal invited for written

submissions. It received written submissions and

it gave a decision. True it is to say that the

proceedings in some circumstances can be conducted

in public by only receiving submissions which no

doubt are then made public. But, in our

submission, what is contemplated by 98BC(l) and (2)

is that there be proceedings which do take place in

public in which there can be, to the extent

appropriately permitted, oral argument and other

matters germane to that. It may be cross-

examination, for example.

But the point is not just that there was not a

hearing in public on the question. There was a

serious issue which, Your Honours, is one on which

the Tribunal needed to hear submissions, and that
is the second question: if it be that the agreement

was one within section 98BAA, then the question of

the date on which it was to come into effect and

whether there was to be a determination at all made

by the Tribunal under section 7 was one on which

the Tribunal simply proceeded to make up its own

mind and just accepted a suggestion that was given

by the Commonwealth and declined to entertain

submissions on that question.

Could I come back for just a moment to one

matter I passed over.	What we would seek to
say - - -

GAUDRON J: Can I just take you back? You say that there

was, except so far as otherwise provided in the

agreement, as it were, falling within 98BAA(3)

relating to the date on which the agreement and

the determination should have effect.

MR JACKSON:

I am sorry, Your Honour, I did not quite follow

that.

GAUDRON J: I understand that. Your submission is that there

was, in fact, something for 98BA to apply to - - -

MR JACKSON: Section 98B, Your Honour.

GAUDRON J: I see, yes.

DAWSON J: Where does the obligation - you have mentioned

it - to fix the date come here? The agreement did

not provide for its own - - -

MR JACKSON:  No, Your Honour, it did not provide for a date.

In fact, it made it conditional upon the Tribunal providing a date.

Crowe 9 21/5/93

DAWSON J:  And is there a separate obligation to fix a date or you just draw that from the - - -

MR JACKSON: That came from the agreement clause 7. If

there had been no agreement, then the position

which would obtain would be that provided for by

section 98BE.

DAWSON J:  I see.

MR JACKSON: But, Your Honour, that gives rise really to

the -

DAWSON J:  The obligation to fix a date came from the

agreement itself.

MR JACKSON:  Yes, Your Honour, and that gives rise to what I

would submit is really the anterior question,

namely whether the agreement was one which fell

within the contemplation of 98BAA because 98BAA, we

would submit, is talking of an agreement which

provides for its own terms. The Tribunal is

obliged to give effect to it but 98BAA does not
contemplate an agreement which, within itself,

purports to give the Tribunal a part of the

agreement-making power. If we are correct about

that, then of course 98BA did apply because

98BAA(3) would not be effective.

GAUDRON J: Was this last point a matter that was raised

below?

MR JACKSON:  Yes, Your Honour. We succeeded at first

instance on that question and the question whether

it was or was not an agreement was a matter that

was very much in issue.

GAUDRON J: By reason that the date was left open?

MR JACKSON:  Yes, Your Honour, and was found against us in

the Full Court of the Federal Court. But if one

makes the assumption that it was an agreement in	terms of 98BAA(l) there is still nothing at all
which takes away the obligation to have a hearing
in relation to the question of the date on which
the agreement is to come into effect and, indeed,
whether the Tribunal should agree to it. And there
is no reason why the parties are not entitled to be
heard on that.

DAWSON J:  You say the agreement ',.;as not in force because it

required the Tribunal to put it into force and

therefore it was not an agreement - yes, I see.

MR JACKSON:  Your Honours, we take the alternative position

if that is wrong. If we are wrong in saying it was

not an agreement in terms of 98BAA, then one of the

Crowe 10 21/5/93

matters that had to be decided was should the

Tribunal, in effect, agree to fix a date and if it

does, what should the date be? Undoubtedly we are

interested parties and in those circumstances the

obligations of 98BC and 98(2) contemplate that

there will be a hearing on those questions and one

conducted fairly. It will not just be, as there

was here, a Tribunal taking the view that it was

obliged to accede to the request of the

Government's side of it that it start on 1 January.

Your Honours, those are the issues in the case.

The Full Court's view, if I could just take

Your Honours to that very briefly, seems to be that

section 98BAA was a kind of blanket provision - or

as we would say, a wet blanket provision, in

effect - that blotted out section 98B altogether.

In that regard, could I take Your Honours to the

relevant passages and indicate where they are.

Page 91 line 1 through to page 92 line 10. In the

first paragraph of that passage, that is at

page 91, the first paragraph on the page, Your

Honours will see that the court really divided it

up into two mechanisms, the second mechanism being

98BAA. Then at the top of the next page, the

second line, they say when you come to the second

mechanism, 98BA does not have any role to play.

But, Your Honours, that seems to leave out 98B, and

98B is referred to in section 98BAA(l).

GAUDRON J: And there is no doubt that 98BC applies to a 98B

inquiry, is that - - -

MR JACKSON:  Your Honour, could I just say this: 98BC says:

in any proceeding before the Tribunal:

And there seem to be three classes of proceedings;

first, 98BA, which describes its function. And

Your Honour will see if you go, for example, to

98BD(2) - - -

GAUDRON J: Certainly that has not ever been put against you

anyway, has it?

MR JACKSON:  Not as we understand it, Your Honour. The only

thing that might provide a shadow of an argument in

support of that proposition against us is the

specific reference in 98BA(3) to representation,

whereas there is no specific reference to that in

respect of 98B. But against that, of course, is

the fact that 98BA(2) really treats inquiries under

98BA(l) as being an instance of proceedings as

distinct from the only source of proceedings. If I

could just say there seem to be broadly three

classes of proceedings: 98B, 98BA and then 98C(2).

Crowe 11 21/5/93

I should also refer to page 93 at line 16, in

a passage which goes through to line 22 on the next

page and Your Honours will see the core of that

reasoning is at page 94 lines 15 to 19.

GAUDRON J: Is that the sole ground that was advanced in the

application for review? I mean, there may be

other questions. It just seems to be involved in

your submissions.

MR JACKSON:  Advanced on our side?

GAUDRON J: Yes.

MR JACKSON:  No, it is not. Your Honour, could I say that

the arguments that were advanced were, not

surprisingly Your Honours, ranged a little larger

perhaps than the arguments before the Court now.

You will see them summarized at page 54, they commence, in the primary judge's reasons, where

His Honour sets out in numbered paragraphs with his

conclusions between them, the several arguments

that were advanced in the first instance. That

goes through - now, Your Honours will see he

adopted submission 1 at the bottom of page 54; he

rejected the second one; the third, at the top of

page 56, Your Honours will see is one we have

mentioned today; then paragraph 4, which is one of

the points I was arguing only a moment ago.

GAUDRON J: Yes.

DAWSON J:	You contest what is said on pages 93 and 94, do you? What I am putting to you is it may be said
that that was the intention of the
legislature; whether it has achieved it or not is
another thing; do you contest that view?

MR JACKSON: That it was the intention of the legislature?

DAWSON J: Yes.

MR JACKSON:  Yes, Your Honour. What we say is this, that if

you look at -

DAWSON J: What I have in mind, so as to make it perfectly

plain to you, this is just a question of

construction of the statute and I would be asking

you what is specially important about that to

attract special leave, particularly if, although

the legislature may not have achieved its

intention, it is clear enough what its intention

was.

MR JACKSON:	Your Honour, could I just say a couple of things about that, first, in relation to what
section 98BAA means.  What we would say in that

Crowe 12 21/5/93

regard is that 98BAA takes away, in cases to which

it applies, the ability to conduct an inquiry under

98BA. It does not - and it does not in terms

really touch it - it does not touch 98B except that

it says, if you are making a determination under 98B, you have to give effect to the terms of the

agreement. Now, the agreement may cover only part

of the pharmaceutical benefits. It says so

specifically.	You have to give effect to it to the
extent to which it applies.	Your Honours, it does

not contemplate, we would submit, an agreement that

in itself purports to give jurisdiction to the

Tribunal, as it does by clause 7.

So in a sense it is right to say, perhaps this

is just a case where they have made an agreement in
the wrong form, but the point that gives it
importance consists of a number of things: the

first is that, as Your Honours will see, the

agreement is one which really affects - and I am

speaking really about its general application - it

affects the price of drugs and medicines and the

remuneration of, roughly, 5000 pharmacists for a

period of four and a half years. The references

where one sees that are pages 4 lines 23 to 29,

page 5 lines 16 to 18 and pages 114 and 115. So it

has a broad general application and it means that

in respect of the price of those things and, for
practical purposes, the range of those things for a
very considerable time, remuneration and price are

affected very significantly for all Australians.

The second thing is that it does occupy at that time some four and a half years. The third

feature is that if the judgment below stands, one

is in a situation where, at the end of the four and

a half years, another agreement in similar form is

one that the statute as interpreted would say can

be brought into effect. Your Honours, that is the

importance of it. And the other thing - it is the

importance in a sense, but if we are correct about

the interpretation of it, one also has injustice

to a large number of people because of their

inability to put to the Tribunal submissions on

matters that were of vital importance to them.

Your Honours, I do not think I can advance it

beyond that.

DAWSON J: Yes, Mr Bennett.

MR BENNETT:  Your Honours, the only real importance after

four and a half years is whether the Government

Printer when he prints the next agreement redrafts

clause 7 to avoid the technical problem my friend

has raised. It does not involve in any real sense

Crowe 13 21/5/93

5000 pharmacists and their fees and the calculation

of them at all.

GAUDRON J: I do not understand what you put about clause 7.

MR BENNETT:  Clause 7 of the agreement, Your Honour. My

friend's ultimate substantive point is nothing more

than that the legislature's intention in relation
to this agreement was frustrated because clause 7

was badly worded and produced a circularity. That

is his only ultimate substantive point. His

procedural point is that that question that there

was no agreement because of the way clause 7 works

should have been heard in public with the panoply

of a hearing under section 98B.

GAUDRON J: No, no; it is that the question of the date of

determination should have been held.

MR BENNETT:  Yes, I will come to that as part of it. The

key to this case lies in reading section 98BAA,

page 213. This is a provision superimposed on an

existing structure. There is a structure under

which the Tribunal makes determinations, under 98B

and 98BA. It is an unusual provision in that it

goes out of its way to make the central point it

makes four times. It starts by saying:

Despite anything else contained in this Part

so the primary law in a provision to which this

part applies is to be this section, and one could

ignore the rest, except in so far as it is

incorporated by reference or left untouched. Where

there is an agreement - and I will come back to the

clause 7 problem -

the Tribunal, in making a determination under
subsection 98B(l) while the agreement is in

force, must give effect to the terms of that

agreement.

That is unusual language in relation to a Tribunal.

Not it shall consider it, it shall apply some

discretion to it, it must give effect to whatever

it says. It ceases to be a quasi-judicial

Tribunal, becomes a mere ministerial rubber stamp.

That is what this section does. It goes on to say

where there are some proceedings pending under 98BA

or proceedings have been pending but judgment is

reserved, "the Tribunal must terminate the inquiry"

or, if it is a judgment reserved case, "take no

further action". This is not talking about a

Tribunal which is going to have some elaborate

public hearing on the nature of what this agreement

is, that is considered by the legislature to be a

mere ministerial determination as, of course, it

Crowe 14 21/5/93

is. You just look at it and there it is. It is

not a difficult question, subject to the point of

law my friend gets out of clause 7 which I will

come back to. Then, fourthly, it says in

subsection (3):

Section 98BA does not apply while there is in force an agreement -

et cetera.	So that is the structure we are looking
at.	Now the parties come to make an agreement.

They are setting about the task of making an

agreement of the type referred to in 98BAA. They

produce an agreement, it is a two-part agreement,

it has a large number of pages, and one matter, of

course, which the parties making this agreement are

fully aware of is that the way this agreement will

come into effect is that the mere ministerial

determination by the Tribunal will be necessary.

They would assume, one would have thought, that is

a matter of a few days. We go to the Tribunal, we

say, look, here is the agreement, you do not have

anything else to do except do your formal task

under this section; like a bill being reserved for

the Governor-General or any of the many situations
in which otherwise important functionaries are

given ministerial tasks, or what are in substance

ministerial tasks. So they say, correctly:

This agreement is conditional upon a

determination being made by the Tribunal

pursuant to section 98B.

That is merely repeating in a formal way what the

statute says.	Of course, the actual determination
has to be made by the Tribunal.	It will be made in
the form of this document.	Now, it may be clumsy

as a matter of very precise legal English to put it

in that form. Perhaps what should have been said

is, this agreement will operate under

section 98B(l) when given effect by the Tribunal.

One could have put it in a more elegant form, but

the intention is pretty clear. It then goes on:

This Agreement will commence on the date that

such a determination is made -

Well, obviously.	The determination is not going to
have any effect until it is made.	The agreement

has no effect on its own because the agreements

only effect is to bind the Tribunal to make the

determination.

As I have said, clause 7 could have been more

elegantly drafted but its intention is so crystal clear that to suggest that it stops this document

being an agreement is, with respect, a submission

Crowe 15 21/5/93

which does credit to the ingenuity of my learned

friend and his predecessors but which has no weight

at all.

Once one reads it that way, one sees why the

submissions about the public formalities of 98BC

and the hearing and natural justice and so on all

become very academic. Certainly the body, like any

other body, has to decide if it has jurisdiction

but in deciding whether it has jurisdiction, it

does not necessarily have to go through the full

panoply of its procedural requirements. It may be

right, it may be wrong. Where there is a clear

short question of law which, at best, the

construction of clause 7 is as to whether there is

an agreement in force, this Court and the two

courts beneath it are perfectly capable of saying,

there is an agreement, there was nothing much the

Tribunal had to do. And it then becomes completely

unimportant to know whether it sat in public,

whether it went through procedures, whether it gave

natural justice or anything else.

But even more so in this Court where we are

looking for an important question of great public

importance. Certainly, it may be of public

importance if this is delayed on a technicality,

but apart from that, there is none. There is no

question of public importance as to whether this

Tribunal hears the question of law concerning clause 7 in public or in private. It is a mere

ministerial determination.

The other matter, of course, is it is with

respect slightly misleading to suggest that 5000
pharmacists are precluded from seeking recourse to

the Tribunal. The Guild is a party to the

agreement and it represents the vast majority of

them. Page 5 line 14 says it represents

84 per cent of them, so it is not as if this is

some sort of dramatic exclusion.	The statute
provides, if an agreement is reached with that

Guild, certain consequences follow and all that is sought to be done is to apply them.

In relation to the suggestion that there is no

agreement because the date remains to be set,

clause 7 is not suggesting that there is to be some
discretion in the Tribunal to determine as a matter

of economic justice or fairness what is the

convenient date for the agreement to commence.

That is not the intent of clause 7. The intent of

clause 7 is simply to recite what is apparent without the clause being there, and what is a

complete tautology in a sense, a redundancy,

rather, namely that the agreement will come into

force as a determination which is operative when

Crowe 16 21/5/93

the Tribunal makes it determination. It would not

have occurred to anyone that there was any

significance, that anyone should sit down and think

about that date. That is a matter of getting round

to putting the rubber stamp on and nothing more

than that.

For those reasons we would submit, first, that

the Full Federal Court was clearly correct in its construction of clause 7 in the light of the true

purpose of section 98BAA; secondly, that there was

no necessity for any further procedural steps;

thirdly, if there were, that it is unimportant

whether they occurred or not because all they are

steps towards is the determination of a very

obvious question of law; and fourthly, that the

case itself involves no issue of importance. The

underlying agreement may be a matter of enormous

importance but what is put here is that because of

a technical defect depending on the wording of clause 7, if it be a defect - and we say it is not - the procedure miscarried and people should go

through the necessary steps to have that redone. In my respectful submission, that does not raise

any issue of importance for this Court.

It certainly raises no legal issue of

importance because it is a question of construction

of a section and the construction is not affected

by doubt. May it please the Court.

DAWSON J:	Mr Jackson.
MR JACKSON:	Your Honours, it is all right, almost ingenious

one might say, to call these matters technical, but the question of the rights of individuals is always

a matter of importance, particularly where

statutory rights are given by section 98BC, and the

question is whether a provision which seeks to take

them away, in the interests of others or where

interests other than those persons are the ones who

do it simply by agreement, is a matter of

importance. Now, Your Honours - - -

DAWSON J: Just a moment, Mr Jackson. I should have asked

Ms Byrnes, do you wish - - -

MS BYRNES:  The third respondent joins in with the

submission of the Commonwealth.

DAWSON J: Thank you. Yes, Mr Jackson.

MR JACKSON: All I was seeking to say, first, is that this

is not just a case where it is simply a matter of
seeing whether they did or did not get close to it,

they are important rights that have been taken away

by the operation of BAA. Your Honours, we do not

Crowe 17 21/5/93

say that there is not an agreement; what we say is

that the condition of the operation of 98BAA has

not been satisfied because there is not an

agreement of the kind required to trigger it.

Your Honours, I do not wish to say anything

else.

DAWSON J:  Thank you, Mr Jackson.

This matter raises questions of construction

which, while they are no doubt of importance to the

parties, involve no general principles which would

attract the grant of special leave. Special leave

is accordingly refused.

MR BENNETT:	I would seek an order for costs, Your Honours.
MR JACKSON:	Nothing to say, Your Honours.
DAWSON J:	The application is refused with costs.

AT 12.32 PM THE MATTER WAS ADJOURNED SINE DIE

Crowe 18 21/5/93