Hanna, Ibram v Australian Community Pharmacy Authority

[1998] FCA 182

FEDERAL COURT OF AUSTRALIA

PHARMACEUTICAL BENEFITS - meaning of “the shortest lawful access route” - no discernible error - appeal dismissed

National Health Act 1953 (Cth)

Bank of Western Australia Ltd v Commissioner of Taxation (1995) 55 FCR 233 cited
Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (New South Wales)
(1979) 46 FLR 131 followed
Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR
133 cited

Federal Commissioner of Taxation v Cainero (1988) 88 ATC 4427 cited
Commonwealth v Smith (1989) 10 AAR 227 cited

IBRAM HANNA v AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
NO SG 44 OF 1997

O’LOUGHLIN J
ADELAIDE
6 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 44 of 1997

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER J A KIOSOGLOUS

BETWEEN:	IBRAM HANNA Appellant
AND:	AUSTRALIAN COMMUNITY PHARMACY AUTHORITY Respondent
JUDGE		O’LOUGHLIN J
DATE OF ORDER:		6 MARCH 1998
WHERE MADE:		ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

1. The appellant pay the costs of the respondent to be taxed in default of agreement.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 44 of 1997

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER J A KIOSOGLOUS

BETWEEN:	IBRAM HANNA Appellant
AND:	AUSTRALIAN COMMUNITY PHARMACY AUTHORITY Respondent

JUDGE:	O’LOUGHLIN J
DATE:	6 MARCH 1998
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

This is the latest round in an ongoing dispute between these litigants.  The appellant, Mr Ibram Hanna, a pharmacist, wants to carry on business in shop premises at the Honeypot Shopping Centre, Honeypot Road, Hackham West, South Australia (“the premises”). For him to do so, he must obtain the support of the respondent, the Australian Community Pharmacy Authority (“the Authority”) and that support has not been forthcoming.  The Authority, on 9 September 1995, decided to recommend to the Secretary, Department of Health and Family Services (“the Secretary”) that Mr Hanna not be approved for the purposes of supplying pharmaceutical benefits at or from the premises.

Mr Hanna successfully challenged the Authority’s decision in the Administrative Appeals Tribunal (“the AAT”); it set aside the Authority’s decision and remitted the matter to the Authority with the direction that it recommend to the Secretary that Mr Hanna’s application be approved and that the Secretary reconsider the application in light of the proposed substituted recommendation.

The Authority appealed to this court from the AAT’s decision (“the AAT’s first decision”) and was successful, but only in respect of one of several grounds of appeal:  Australian Community Pharmacy Authority v Ibram Hanna (Mansfield J; unreported; Judgment delivered 6 February 1997).  The matter was remitted to the AAT who, on that occasion found in favour of the Authority (“the AAT’s second decision”).  Mr Hanna now appeals to this Court from the second decision of the AAT.  The AAT was constituted by the same member on both occasions.

To identify the ground upon which the Authority succeeded in its appeal against the AAT’s first decision, it is necessary to give a short summary of the relevant legislative provisions.  Subsection 90(1) of the National Health Act 1953 (Cth) (“the Act”) 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 the pharmacist for the purpose of supplying pharmaceutical benefits at or from those premises.”

Subsection 90(3A) of the Act states that, with some exceptions which are not relevant to Mr Hanna’s application, an application to the Secretary must be referred to the Authority.

Section 99K of the Act lists the functions of the Authority; they include the making, in respect of applications under s 90, of a recommendation whether or not an applicant such as Mr Hanna should be approved under that section in respect of particular premises.  Section 99L imposes upon the Minister the obligation, inter alia, to determine:

“the rules subject to which the Authority is to make recommendations under Subsection 99K(1).”

The parties are in agreement that the rules that are relevant for the purpose of these proceedings are those contained in Determination No PB 6 of 1995 which came into operation on 10 May 1995 (“the 1995 Rules”).  That Determination replaced Determination No PB 9 of 1993 (“the 1993 Rules”) and has, in turn, been replaced by Determination No PB 18 of 1995 which came into operation on 1 January 1996 (“the 1996 Rules”).

The 1995 rules relate (inter alia) to the circumstances and conditions under which the Authority may or may not recommend approval.  For present purposes, it is sufficient to refer to subpar (a)(i) of Rule 5.  That provides as follows:-

“5.Approval of a pharmacist under section 90 of the Act in respect of particular premises must be recommended if:

(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 section 90 of the Act; and

(ii)... (not relevant)

(iii)... (not relevant)”

There are, of course, other conditions that if not fulfilled may lead to a negative recommendation but they are not relevant and need not be considered

The central issue in this appeal arises out of the meaning of the phrase “the shortest lawful access route.” The premises are close to the Colonnades Shopping Centre and in that Centre there are two pharmacies, both of which have been approved for the dispensation of pharmaceutical benefits.  It was conceded that the distance travelled by motor car from the premises to the nearer of the two pharmacies is marginally over two kilometres but that there were various alternative pedestrian routes, some of which were less than that distance.

In the AAT’s first decision, the Tribunal concluded that:

“... the words, ‘lawful access route’ in their totality require that a route be not only lawful, but also accessible.  The word ‘access’ requires that the route have an element of accessibility in the sense that it be easily accessible, safe, and there are no impediments to its use such as the existence of barriers and obstacles in the path.”

Later in its reasons the AAT said:

“The Tribunal ... believes that in a society which promotes access and equity for disabled people and the old and infirm, and where planning steps are taken to improve access for disabled persons and minimise discrimination the Tribunal would have to take into account the ability of such persons to use the routes in question.  The Tribunal has not limited this analysis merely to disabled persons, but has considered other groups of people whom certain routes may be unsatisfactory, including the elderly and parents with young children.  The Tribunal’s view is supported by [Pharmacy Restructuring Authority v Chatfield (1993) 116 ALR 76] where such principles were imported into the words “definite unmet public need.” Whilst it could be argued that such a reading resulted from the specific words then in question, the Tribunal believes that the word “access” imports similar concepts.”

On appeal, Mansfield J concluded that this passage established that the AAT had fallen into error in having regard to the characteristics of the people - their state of health, their age and their safety - who may have difficulty in using a particular route.  His Honour’s view was that the 1995 Rules did not intend those factors to be taken into account; instead he concluded that the correct test was to be based upon a physical assessment of the competing routes.

His Honour, with a minor qualification, accepted a proposal that had been advanced on behalf of the Authority to the effect that an “access route” was one that was:

“... generally available to be taken between approved premises and the proposed premises that could hypothetically be used by ordinary persons travelling that route.”

The matter was therefore remitted to the Tribunal for reconsideration in accordance with his Honour’s reasons.

The AAT, in its reasons that are now under appeal, interpreted his Honour’s reasons in these terms:

“His Honour held that the ease of access and the significance of impediments on the routes in issue were not to be considered having regard to the members of the public who may have difficulty with those routes.”

That passage in the Tribunal’s reasons was, in my opinion, an accurate summary of what Mansfield J had said in the following passage:

“It then becomes simply a question of fact whether a particular suggested route provides “access” between the premises in question.  There will be suggested routes which, as a matter of practical common sense, do not meet that description:  steepness, danger, obstacles and the like will provide obvious examples.  There will come a point at which such impediments will be of such a nature as not to destroy the quality of the route as an access route.  Generally, where that line is crossed is a question of fact.  A route is not an access route for the purposes of the Rules if only the fittest and strongest can use it, any more than it may be an access route even if a particular person or persons by reason of age or disability cannot use it.

For the reasons expressed above, in my view the focus should be on the physical characteristics and features of the suggested route, rather than upon the persons or categories of persons who might choose to use it but for age, or frailty, or for other reasons, or upon those who do use it.  It is evident therefore that usage, even relatively frequent usage during certain times of the year, by members of a community will be indicative of, but not conclusive of, the question of fact.”

In its reconsideration of the matter the AAT identified five alternative routes, four of which were less than two kilometres.  It described those four routes as proceeding “along informal tracks through paddocks”.  It further explained that some sections of the paths were made of clay and loose stones while others were made of gravel; some sections were grassed but others were bituminised.  The AAT further found that all four paths lacked “all weather surfaces” and that they may be subject to flooding and unusable in winter.

The AAT explained in its second decision that its earlier reasoning with respect to the personal characteristics and potential inadequacies of some of those likely to use one or other of these four paths was crucial to its finding that none of the routes could be accepted as an “access route.”  But now that it had been directed, by force of the Federal Court decision, not to take those characteristics and inadequacies into account, it found:

“that the remaining routes in question are lawful access routes.”

Mr Hanna has now appealed against the AAT’s decision claiming that it erred in its interpretation of the words “shortest lawful access route” in that it incorrectly applied the reasons of Mansfield J.  The appellant’s complaint was particularised as follows:

“The Tribunal misdirected itself in the following ways:

(a)It excluded from its consideration of the ease of access and significance of impediments any regard to the members of the public who may have difficulty with the informal routes.

(b)It failed to assess accessibility safety and impediments to the use of the routes in a generally understood way.

(c)It applied a test which gave no consideration to the exclusion of a significant proportion of the community who might wish to use the informal routes from use of any of those routes at all times and to the exclusion of the whole of the said community from using those routes from time-to-time.

(d)It did not reject as lawful access routes those routes which varied depending on the season or the climate at the time of the application or the time of the hearing, and misinterpreted His Honour’s directions on the importance of continued availability.

(d)(sic)It erred in excluding any consideration of the members of the public who must use the informal routes to access pharmaceutical benefits and in precluding from its consideration the particular difficulties which sections of the public might face in using the routes.”

Should it be thought that these grounds are or may be an indirect attack on the decision of Mansfield J, I should make it clear from the outset that I respectfully agree with his Honour’s decision.  In any event, I would follow his Honour in the interests of comity “unless I thought that he was clearly wrong”:  Bank of Western Australia Ltd v Commissioner of Taxation (1995) 55 FCR 233 at 255 per Lindgren J and the authorities therein cited.

The difficulty that confronts Mr Hanna on this appeal is that Mansfield J emphasised that the test related to the physical condition of the proposed route and not to the characteristics of the people who would or might use it.  His Honour was at pains to point out that if the condition of the route was so extreme that few - if any - could use it, then it would not be an accessible route.  But that decision would be based on the physical condition of the route.  On the other hand as his Honour pointed out, a route may involve steps and stairs making it difficult - even impossible - for some people with physical disabilities to use it.  But that factor would not prevent the route being described as “a lawful access route”.  The point that must be emphasised is that the subject route does not have to be capable of use by every member of the community.

On the appeal from the AAT’s second decision, counsel for the appellant attacked four passages in the Tribunal’s reasons, claiming that each of them represented a misunderstanding of his Honour’s reasons.

The first was a passage that has already been quoted in these reasons:

“His Honour held that the ease of access and the significance of impediments on the routes in issue were not to be considered having regard to the members of the public who may have difficulty with those routes.”

As I have earlier said I find this passage wholly conformable with his Honour’s decision.

The next complaint is based on the AAT’s statement that it cannot take into account the ability (or inability) “of all categories of the community to use” the relevant route.  But that is exactly what Mansfield J had found to be the error into which the AAT had originally fallen.  There is no substance in this complaint.  The remaining two complaints come from the two sentences next following:

“However now using the same tests that it used to make its original finding, but excluding a consideration of the members of the public who must use this route to access pharmaceutical services, must find that the route satisfies the test for a lawful access route.  The Tribunal is now precluded from considering the particular difficulties which people such as the elderly and the disabled may face in using this route, but instead must focus on the physical characteristics and features of the routes.”

The first of those sentences is not readily understood when read in isolation.  But any suggestion that the AAT was there saying that no regard was to be had to any members of the public is dispelled by the second sentence.  In that sentence the AAT makes it clear that it recognised that its original benevolent interpretation of “lawful access route” had to give way to an assessment of the physical characteristics of the route.

Counsel for Mr Hanna submitted that nothing in the judgment of Mansfield J stated that community usage and difficulties confronting users were to be ignored.  I agree but I reject the consequential submission that the AAT had ignored them.

It was submitted that there was evidence before the AAT that the four routes could be lost at any time in the future through normal subdivisional and urban growth.  That may or may not be the case.  There is a need that there be a degree of permanency in identifying a particular route as the “shortest lawful access route” but that only means permanency in the immediately foreseeable future.

Counsel for the appellant sought to question the identity of the owner or owners of the paddocks over which the four routes traversed and whether those owners had given any express or implied consent to the public to use those paths.  That issue was addressed by the AAT  in its first decision and it came to the conclusion that users of the routes were invitees of the owners.  When the matter came before Mansfield J that finding was not challenged and when the matter was sent back to the AAT, understandably, it was not further addressed.  It is not now competent for Mr Hanna to raise this matter.  I add, for what it is worth that it was not even raised in his notice of appeal.  His correct course of action would have been to respond to the Authority’s notice of appeal by filing and serving a notice of cross-appeal:  O 53 r 13.

The next complaint that was made with respect to the reasons of the AAT was that it “failed to address at all in its second judgment the evidence regarding safety.  The Tribunal failed to address this because it excluded a consideration of the members of the public who are using the route.”

This is not a reasonable interpretation of the AAT’s reasons.  It might be that the word “safety” does not appear but a reading of the reasons as a whole shows that the subject was not overlooked.  In par 9 of its reasons the AAT in summarising some of its original findings noted evidence that a particular route would be “both unsafe and unusable at certain times of the year.”  In par 12 the AAT noted that it had earlier concluded that “the elderly, the disabled and parents with small children may face extra difficulty, on top of the difficulties faced by the community generally, in using those routes.”  That passage, and others like it, point to the AAT being conscious of the subject of safety.  In my opinion, the task of the AAT, when considering the subject of “safety”, was to consider it as an aspect of the physical attributes of the route that was under consideration and, in that context, to consider it in the interests of the whole community.  My reading of the whole of the reasons satisfies me that the AAT did this.

When reviewing the reasons of a Tribunal, an appellate Court should not be quick to seize upon minor inconsequential errors nor should omissions lead to an immediate conclusion that a matter of importance was not given appropriate consideration.  There is an abundance of authority in this Court to that effect.  In Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (New South Wales) (1979) 46 FLR 131 at 145 Fisher J said:

“It is my firm view that this Court when hearing appeals from a Tribunal constituted for the purpose of reviewing decisions of this nature, should adopt a restrained approach.  Parliament contemplated that only in exceptional circumstances should the decision of the Tribunal not be the final decision.  This does not mean that when an error of law is identified, the court should be reluctant to intervene.  In fact, it is under a duty to do so.”

Sheppard J expressed himself as being in “complete agreement with what was said by Fisher J.”:  Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 133 at 157. On a later occasion, Foster J approached the same subject saying:

“What may appear to be a lose or unhappy way of phrasing a thought ought not be determinative of the outcome unless it is apparent that the Tribunal has by its language been led to make an error of law.”

Federal Commissioner of Taxation v Cainero (1988) 88 ATC 4427 at 4431.

Another reference to the same subject appears in the judgment of von Doussa J in Commonwealth v Smith (1989) 10 AAR 227 at 282 where he said:

“Not every failure by the Tribunal to mention a contention on behalf of a party or to decide a question of fact that was put in issue during the hearing before it will amount to a failure to comply with s.43(2B).”

Guided by those decisions and looking at the reasons of the Tribunal as a whole, I am satisfied that the AAT approached its task in terms consistent with the reasons appearing in the judgment of Mansfield J.  I do not consider that any error warranting the intervention of this Court has been identified.

The appeal is dismissed with costs.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin J

Associate:

Dated:             

Counsel for the Applicant:	Mr M Beamond
Solicitor for the Applicant:	Messrs Mellor Olsson
Counsel for the Respondent:	Mr D O Simpson
Solicitor for the Respondent:	Messrs Minter Ellison
Date of Hearing:	17 September 1997
Date of Judgment:	6 March 1998