Martin & Anor v Pharmacy Restructuring Authority

[1995] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S188 of 1994

B e t w e e n -

LORRAINE ELIZABETH MARTIN and NATALIE RIDGEWAY

Applicants

and

THE PHARMACY RESTRUCTURING AUTHORITY

First Respondent

THE SECRETARY, DEPARTMENT OF COMMUNITY SERVICES AND HEALTH

Second Respondent

KIM PHUONG TRAN aka KIM PHOUNG LAM, PHOUNG LAM and LILLY PHOUNG LAM

Third Respondents

Application for special leave to appeal

DAWSON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 AUGUST 1995, AT 11.32 AM

Copyright in the High Court of Australia

______________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR A. HUGHES, for the applicant.  (instructed by Colinard & Co)

MR D.M.J. BENNETT, QC:   If the Court pleases, I appear with my learned friend, MS R.M. HENDERSON, for the first and second respondents.  (instructed by the Australian Government Solicitor)

DAWSON J:   Before you begin, Mr Jackson, I have a certificate from the Deputy Registrar that Kim Phuong Tran also known as Kim Phoung Lam Phoung Lam and Lily Phoung Tran, the third respondents in this matter, submit to the decision of the Court, save as to costs.

MR JACKSON:   Your Honours, as is apparent from the material before the Court the guidelines that are the subject of the present application have been repealed and have been replaced by rules which are in somewhat different terms and, in fact, that means that the case no longer has the enduring significance which it might have otherwise have had because the rules - - -

DAWSON J:   It is a difficulty, is it not, Mr Jackson.

MR JACKSON:   Your Honour, I am about to come to that now.  What I was going to say was that that leaves the issues which are raised in paragraph 1(c) of our written submissions and, namely, that is where we submit that there is injustice to the applicants sufficient to merit the grant of special leave which has been occasioned by the interpretation given by the term “normal access routes”.  Now, your Honours, I accept immediately, of course, that that is something that relates, as events have turned out, to the particular case but may I seek just to say something about it.

The first thing is this, that your Honours will see if I could take your Honours for just a moment to the status of the guidelines.  They are dealt with in paragraphs 3 to 7 of the written submissions and the guidelines provide for a number of circumstances in which a recommendation for approval may or may not or shall be given by the Board in question and there is need for there to be a favourable approval before there can be a transfer or grant of the approval by the Secretary of the Department.

Your Honours, could I go immediately to the guidelines which are set out at annexure A to the written submissions and particularly, your Honours, to guideline 3, and that is at page 2 of annexure A.  What your Honours will see is that paragraphs (a), (b) and (c) of guideline 3 prohibit approval being recommended where any of three circumstances exist - it is a prohibition, your Honours.  In guideline 3(a) where it is,
“within 5 kilometres by normal access routes from other approved premises”.

Secondly, in 3(b) there must also be “a definite unmet public need” and thirdly, in clause 3(c ), if I could paraphrase it, there must not have been a payment in respect of amalgamation or closure of pharmacies.  That is what the two sections refer to.  Coming then to the provision in question, 3(d), what your Honours will see in 3(d) and in 3(e) are two circumstances where approval is to be recommended.

What your Honours will see, if I could so use tht expression again, is that in both cases critical to the operation is the phrase “by normal access routes” and, in particular, going to 3(d) what your Honours will see is that it says:

Notwithstanding anything in (a), (b) and (c) approval.....shall be recommended where those premises are located not more than 500 metres by normal access routes form other premises in respect of which -

et cetera.  Now, your Honours, this was a case where the facts are demanded, in our submission, that close attention be given to the requirements of the guidelines.  If I could take your Honours for just a moment back to paragraph 2 of our written submissions.  It was a case where the third respondent had, in effect, come with, as an employee, the applicants’ pharmacy, stayed for a few weeks, started on her account in the general area, and then, as your Honours will see from paragraph 8, applied to move that approval to a place two doors away from the applicants’ then new premises, something which, as one might expect, would be particularly disastrous for goodwill.

Your Honours, the Pharmacy Restructuring Authority looked only at whether the distance between the two locations was under 500 metres by any normal access route.  In that regard could we refer your Honours to paragraphs 10 and 12 of our written submissions and your Honours will also see a diagram, annexure B, which shows where the various premises were.  To put it shortly, the position was that the distance, if one walked down the street, across and over the railway line and to the new premises, was under 500 metres but longer if one went by road, which meant going around a railway line.

Now, your Honours, what we would submit is that the primary judge was plainly right in the view which he took of the meaning of the provision which your Honours will see, if I give your Honours very briefly some references to that, at page 12, lines 1 to 15, where he said, in effect, that the term “by normal access routes” meant what it said.  Secondly, at page 13, lines 32 to 45, where he observed upon the fact that the material before the Authority showed merely that the distance was less than 500 metres by (a), meaning (1), normal access route.

DAWSON J:   Mr Jackson, even if the primary judge was right, this is only a question of construction, the question of construction of guidelines, which have disappeared.  Now, where is the point of principle?

MR JACKSON:   Well, your Honour, I will say immediately, as I was endeavouring to say from the commencement of our submission, that it is accepted that the case is one where the particular issues does not apply now, apparently, to any case other than the present one, but having said that the Court still has power to grant special leave in the appropriate case.  What we are submitting is that this is an appropriate case by reason of the view taken by the Full Court and a view which was, we would submit with respect, really remote from the words of the provision that were being interpreted and, accordingly, potentially occasioned considerable injustice.  That is the point we would seek to make about it.

Your Honours, the last reference to which I would wish to give in respect of his Honour’s observations is at page 14, lines 40 to 51.  Now, your Honours, what we would submit is that what is involved in determining the meaning of the expression “by normal access routes” is a very simple proposition where one has to identify what the normal access routes are between point A and point B and, secondly, measure that distance.

The view taken by the Full Court, your Honours, appears at page 31, line 30, in a passage which goes over for a number of pages to page 34, line 45.  Your Honours, the approach is divisible into two parts.  The first of them commences at page 31, about line 30, then goes through the whole of the next page and again page 33, through to page 34 at about line 15.  What your Honours will see from all that is that to a task of really the greatest simplicity, one might have thought, of identifying what the two points were, what the distance between them was by whatever might be the normal access routes, a great deal of sophistication has been attributed.

McHUGH J:    I know that, but it achieves a practical result.  If you look at it, say, in terms of paragraph 3(a), if your argument was right it would mean that the premises could be within 10 out of 11 normal access routes, but the prohibition would not apply as long as it was outside one of them.

MR JACKSON:   Well, that would be right, your Honour, provided that is what one is talking about, “normal access routes”.  If one got to the point of having 11 access routes it probably would be difficult to say there were 11 normal ones.  In the ordinary course of events between any two places one would expect, for example, in urban areas, that there would be one way you would walk and one way you would drive, maybe two.

McHUGH J:   Well, you might come from there, and come from here - - -

MR JACKSON:   No, but, your Honour, one starts at the particular point, and I am getting to that particular point.  Now, if one took the situation between, say, here and where the Court used to sit at Taylor Square there would be probably a few different ways one could there but the two would be the two most obvious ways, really, one by foot and one by vehicle.  There might be a great deal of difficulty in deciding whether the distance from this side of the building was greater than the distance from that side of the building.  Your Honour, what we would submit is it does not involve anything of the nature referred to by the Full Court.

Your Honours, the second thing done by the Full Court was to refer to the evolution of the subparagraph that your Honours will see at page 34, commencing at line 44.  Your Honours, the evolution appears, with respect, to have been more creationist than Darwinian and if one looks at what is there set out, there are two things relied upon.  The first thing is the genesis of the guidelines referred to in the last paragraph on page 34 and the agreement and, in particular, your Honours, what one sees in an earlier version on the second-half of page 35 and, in particular, paragraph 8.5(d)

really does not seem to cast much light on the issue one way or the other because it did not contain any phrase about normal access routes. 

The second thing is that if one goes to the decision which is referred to on page 37 and the passages quoted from it, all that one sees is that the Deputy President had a lot of difficulty working out what the right answer was in a case where there were from one way, because of the one-way streets, there was over 5 kilometres, and one way under, and it does not really seem to touch on the issue in any significant way.

Your Honours, what we would submit is that the better interpretation of the provision is that demonstrated by the simplicity of the primary judge’s approach compared with the sophistication, if I can use that expression, needed to explain the result arrived at by the Full Court.  Your Honours, as I submitted earlier, in order to obtain an approval from the Secretary there has to be a favourable recommendation from the Authority - that is section 90(3B), and if our submissions are correct the applicants have been dealt with unjustly in the particular case.

DAWSON J:   What about the natural justice point?  You do not persist in that?

MR JACKSON:   Your Honour, I do not persist in this sense:  if our contention as to the interpretation of the provision be wrong, that would not seem to matter very much.  If it is right then, of course, there was not any power to do - - -

DAWSON J:   There was not - - -?

MR JACKSON:   I am sorry, if our contention is right then the issue is one which would then have to be determined as to distances, which does not seem to have been done finally.

DAWSON J:   We need not trouble you, Mr Bennett. 

This application concerns the construction of guidelines contained in a determination of the Minister made under section 99K of the National Health Act 1953. The question of construction raises no point of principle, and new rules have, in any event, been substituted for the guidelines pursuant to an amendment of the National Health Act earlier this year.  This is not an appropriate case for special leave and special leave is accordingly refused.

MR BENNETT:   If Your Honour pleases, we ask for costs? 

MR JACKSON:   Your Honours, there is nothing I can say in addition to what is in the submissions.

DAWSON J:   Yes.  With costs in favour of the first and second respondents.

AT 11.47 AM THE MATTER WAS CONCLUDED