Nguyen and Australian Community Pharmacy Authority
[2016] AATA 966
•30 November 2016
Nguyen and Australian Community Pharmacy Authority [2016] AATA 966 (30 November 2016)
Division
GENERAL DIVISION
File Number(s)
2015/1567
Re
John Nguyen
APPLICANT
And
Australian Community Pharmacy Authority
RESPONDENT
And
Joseph Ranallo
OTHER PARTY
DECISION
Tribunal Mr S. Webb, Member
Date 30 November 2016 Place Perth The Australian Community Pharmacy Authority recommendation against Mr Nguyen’s application for approval to supply pharmaceutical benefits at a premises is set aside. Instead, the Tribunal decides that Mr Nguyen’s application satisfies the legislative requirements and recommends it for approval.
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Mr S. Webb, Member
CATCHWORDS
PHARMACIST – application for approval to supply pharmaceutical benefits at a premises – requirement for a ‘supermarket’ within 500 metres of premises ‘at all relevant times’ – meaning of ‘supermarket’ and ‘retail store or market’ – primary business requirement in respect of the sale of a range of food, beverages, groceries and other domestic goods – ‘market’ allows for independent vendors and stall-holders under a singular management – periodic regular market operation of sufficient frequency to establish continuity ‘at all relevant times’ – existence of ‘supermarket’ not confined to hours of operation – requirement for supermarket within 500 metres satisfied – decision set aside
LEGISLATION
Acts Interpretation Act 1901 – s 15AB
Administrative Appeals Tribunal Act 1975 – ss 28, 30(1A), 33(1AB), 37, 39(1)
National Health Act 1953 – ss 90, 99K, 99L, 105AD
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 –
ss 5, 9, Schedule 1 – item 130, Schedule 2 – item 211CASES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41
Elhelwe and Australian Community Pharmacy Authority and Ors [2015] AATA 219
Issa and Australian Community Pharmacy Authority and Anor [2012] AATA 374
Richardson v Austin [1911] HCA 28
Walkerden v Wodonga Pharmacy Limited [2015] FCA 273
OTHER MATERIALS
Macquarie Dictionary
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 Explanatory Statement
Oxford English Dictionary
REASONS FOR DECISION
Mr S. Webb, Member
30 November 2016
John Nguyen is a shareholder and sole director of Chele Pty Ltd (Chele). Chele applied for approval to supply pharmaceutical benefits from premises at ‘Market City’, owned by Perth Markets Limited (PML) at Canning Vale, Western Australia. The application was referred to the Australian Community Pharmacy Authority (the Authority) for assessment and recommendation. The Authority sought comment from local pharmacy operators and, ultimately, recommended against approval. Mr Nguyen applied for review of this decision.
Facts
The following factual findings are established by evidence and they are uncontroversial.
On 19 August 2014, PML (formerly known as Perth Market Authority) (Lessor) and Chele as the trustee for the Chele Unit Trust (the Trust) (Lessee) and Thanh Le Thi Nguyen (Guarantor), executed a lease over Tenancy 1, Ground Floor, Block A on Lot 1002 at 280 Bannister Road Canning Vale (the Premises).[1]
[1] T8.5 folio 247 and T8 folio 121.
On 15 January 2015 (the Application Day), under s 90 of the National Health Act 1953 (the Health Act), application for approval to establish a new pharmacy was made on behalf of Chele.[2] The application specifies that approval is sought to establish a new pharmacy under item 130 of schedule 1 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (the Rules).[3]
[2] T7 and T8.
[3] T8 folio 119.
It is agreed by the parties, correctly in my view, that Chele had a legal right to occupy the Premises on and after the Application Day for the purposes of item 211 of Schedule 2 of the Rules. I do not need to go any further on this point.
On 27 February 2015, the Authority decided to recommend against approval of the application.[4]
[4] T18 folio 498.
Mr Nguyen applied for review. On 28 September 2016, the application came on for hearing and determination.
PML operates a market facility business at Market City.[5] The business includes the operation of:
(a)a wholesale fresh food market (the Wholesale Market) which operates from 5.30am to 2.30pm on weekdays and 6.00am to 8.00am on Sundays, and is not open to the public;
(b)a fresh food clearance market (the Clearance Market) which operates from 6.00am to 10.00am on Saturday mornings, and is open to the public;
(c)a community market (the Community Market) which operates from 7.00am to 1.00pm on Sundays, and is open to the public; and
(d)a retail and business services centre (the Retail Centre) which operates every day of the week, and is open to the public.
[5] Exhibit 4.
The Premises are located in the Retail Centre, which is less than 500 metres in a straight line from the Wholesale Market, the Clearance Market and the Community Market.
The Premises are located more than 1.5 kilometres in a straight line from the nearest approved pharmacy premises, and it is less than 500 metres in a straight line from a full time medical centre.
The gross leasable area of each of the Wholesale Market, the Clearance Market, the Community Market and the Retail Centre are in excess of 2,500 square metres.
Issues
Constraint on issues that may be raised by joined party - ruling
Counsel for Mr Nguyen, Mr Flaherty, argued, and sought a ruling, that the Other Party joined to the application, Mr Ranallo, for the purposes of these proceedings, is confined to issues dealt with in the Authority’s decision.
The argument fails for two reasons.
The Tribunal’s jurisdiction to review a reviewable recommendation of the Authority lies in
s 105AD of the Health Act. In conducting such a review, the Tribunal makes a fresh decision under s 99K of the Health Act, standing in the shoes of the Authority and exercising all the powers and discretions conferred upon the Authority when making the reviewable recommendation decision. In so doing the Tribunal, as with the Authority, is bound to comply with the Rules determined by the Minister under s 99L of the Health Act.[6] It is not bound by any finding or aspect of the reviewable recommendation decision made by the Authority, or anything that is set out in a statement of reasons for that decision for the purposes of s 28 or s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). In order to make the correct or preferable decision, applying the Rules and having regard to all of the relevant materials before it, the Tribunal must address all relevant issues necessary to exercise its jurisdiction. And in so doing, it must provide each party with a reasonable opportunity to be heard and to present a case addressing all relevant issues.
[6] As Chele’s application for approval was made before the Rules were amended on 10 November 2015, by operation of item 4, the Rules that were in force before that date are to be applied.
A person whose interests are affected by a reviewable decision may apply for review of that decision under s 27 of the AAT Act or may apply to be joined as a party to proceedings that are already on foot under s 30(1A). A party joined in Tribunal proceedings is treated in the same way as any other party. This applies, for example, in respect of the obligation to assist the Tribunal (s 33(1AB)) and the requirement in s 39(1) of the AAT Act to:
Ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
There is no basis to discriminate against a party joined to Tribunal proceedings in the manner contended for by Mr Flaherty.
Constraint on additional materials
Under s9 of the Rules, the Tribunal has discretion to seek additional information from the parties than that which was before the Authority when the reviewable recommendation decision was made.[7]
[7] Issa and Australian Community Pharmacy Authority [2012] AATA 374 at [32].
In the circumstances, and with the agreement of the parties, I considered it appropriate to seek and admit additional materials from the parties, addressing relevant matters for the purposes of item 130(2) in Schedule 1 of the Rules as of the Application Day and presently. These materials are in Exhibits 1, 2, 3 and 5. Photographic materials filed after the hearing, by order, are in Exhibit 6.
With consent from the parties, I acceded to an application by Mr Ranallo for a site visit to be undertaken during the hearing. This was done with assistance from PML. By consent, PML provided a document containing information about Market City to the Tribunal and the parties, which I have taken into evidence and placed in Exhibit 4.
Issues for determination
At hearing, I was informed by the parties that certain matters had been agreed, and the key issues remaining in dispute turn on the meaning of the word ‘supermarket’, as defined in s 5 of the Rules. As those matters of agreement are consistent with the available evidence, I have made relevant factual findings.
I understand that Mr Ranallo does not press submissions made prior to the hearing in respect of Chele’s right to legally occupy the proposed pharmacy premises on and after the application day and City of Canning planning approvals, in respect of the Community Market for example. Having regard to the present materials, I am satisfied, as I have said, that Chele had a legal right to occupy the premises on and after the application day. The assertions initially advanced on Mr Ranallo’s behalf in respect of the City of Canning Town Planning Scheme No 40 and the possible approval, or absence of approval, of one or more of the markets or the facilities where they occur were not pressed at hearing. In my assessment of the evidence, these matters are not made out and I do not need to go any further on these points.
It remains to address the meaning of ‘supermarket’ and related issues and, for this purpose, to determine:
(a)the proper construction of the ‘supermarket’ definition for the purposes of the Rules and the Health Act;
(b)whether the Wholesale Market, the Clearance Market and the Community Market, separately or in combination, are within the meaning of ‘supermarket’ for the purposes of the Determination; and if so
(c)whether a ‘supermarket’ existed at ‘all relevant times’ for the purposes of item 130 in Schedule 1 of the Rules.
What is the correct construction of the ‘supermarket’ definition?
Mr Nguyen argues that the meaning of the word ‘supermarket’, as defined in s 5 of the Rules, is clear and unambiguous. It expands the usual meaning of the word ‘supermarket’ to include a ‘market’. This meaning, he asserts, is not modified by the adjective ‘retail’, and it is not constrained by temporal or business ownership considerations. Furthermore, in Mr Nguyen’s submission, there is no basis to insert words into the definition, as written, and to do so would be contrary to well-established high authority in respect of the correct approach to statutory construction.
Mr Nguyen says if he is wrong on this point and the definition is ambiguous in its meaning, or confirmation is required that the meaning of the definition is the ordinary meaning conveyed by the text, then, under s 15AB of the Acts Interpretation Act 1901, reference may be made to the explanatory memorandum for the Rules and, perhaps even, at a stretch, to the Fifth Community Pharmacy Agreement between the Commonwealth of Australia and the Pharmacy Guild of Australia (the Agreement).[8] But, in his submission, these documents are of no assistance in construing the word ‘market’ – that word is simply not referred to in either document.
[8] Exhibit 5.
Mr Nguyen draws support from the Tribunal’s decision in Re Elhelwe and Australian Community Pharmacy.[9] In this decision, the Tribunal (differently constituted) construed a ‘supermarket’ for the purposes of the Rules as something that may “exist outside the usual concept of a store”, including a ‘market’ where, by definition, people “come together for the purpose of trading”, which “could encompass a series of stalls in an open area within a large shopping centre”.[10] Even though Mr Nguyen cavils with other parts of this decision, he argues that this broad construction of ‘supermarket’ is correct.
[9] [2015] AATA 219.
[10] Ibid at [34], [36] to [38].
Mr Ranallo, too, argues that the definition of ‘supermarket’ is very clear and unambiguous insofar, at least, as it relates to a ‘retail store or market’. In his submission, applying the ordinary rules of grammar, the adjective ‘retail’ modifies both following nouns, ‘store’ and ‘market’. Furthermore, the word ‘retail’ imports a temporal element to the definition, such that the retail character of a store or market would be expected to accord with the ordinary conduct of retail trade during usual business hours.
In Mr Ranallo’s submission, a ‘supermarket’, as defined, is a singular entity with a unified character, “the primary business of which is the sale of a range of food, beverages, groceries and domestic goods”. This construction is consistent with the Tribunal’s decision in Elhelwe’s case and, so the argument goes, a ‘supermarket’ does not encompass a conglutination of disparate businesses or characteristically distinct business activities.
It is in respect of the range of goods element of the ‘supermarket’ definition that Mr Ranallo raises an issue of ambiguity. He argues that the precise contents of the range of goods set out in the definition are not capable of being identified on the text alone. Uncertainty of this kind is sufficient, he says, to cause a decision-maker to seek guidance from extrinsic materials and, in this regard, the explanatory memorandum is of assistance. He contends that this document clearly explains what is meant by the range of goods in reference to a ‘supermarket’ and the explanation should be applied when construing the definition.
The Authority informed me that it would adopt a neutral position in the hearing, offering assistance to the Tribunal without pressing a particular case or advocating for a particular result.
Nonetheless, the Authority suggested that it would be anathema to the objectives of the Rules if the definition of ‘supermarket’ is construed so broadly that it encompasses a wholesale market engaging in retail trade for a short period on only one day each week. This is so, the Authority asserts, because it cannot have been Parliament’s intention for that to occur – an interpretation of this kind would not be consistent with purposes of the inclusion of a ‘supermarket’ as a determinant under item 130 in Schedule 1 of the Rules. That purpose, so the argument goes, was correctly explained by the Tribunal in Elhelwe’s case, “the requirement that there be a supermarket… [is] to give some assurance that there will be a sufficient customer base for the new pharmacy to be viable”.[11] Construing the definition of ‘supermarket’ in a manner that would include a very part-time business, operating for only a few hours each week, would not, the Authority says, be consistent with the over-arching purposes of the community pharmacy provisions of the Health Act and the objectives of the Rules to support a network of viable community pharmacies efficiently supplying pharmaceutical benefits to the public.
[11] Ibid at [43].
While the Authority expressly walked away from its original position that a ‘supermarket’ must mean a bricks and mortar premises with some permanence, it maintains that a ‘supermarket’ is something that is synonymous with a Coles, Woolworths, Harris Farm or IGA supermarket.
The task of statutory construction must begin with the text. The meaning of the words used must be elicited contextually in a manner that is consistent with the purposes and policy of the legislation, “in particular the mischief it is seeking to remedy”.[12] Furthermore, it is well established by authority that there is no proper basis to formulate the meaning of a provision by, first, deciding upon the intention of the Parliament and then construing the legislation in a manner that satisfies the assumed intent:
There is nothing more dangerous and fallacious in interpreting a Statute than first of all to assume that the legislature had a particular intention, and then, having made up one’s mind what that intention was, to conclude that the intention must necessarily be expressed in the Statute, and then proceed to find it.[13]
[12] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41 at [47] per Hayne, Heydon, Crennan and Keifel JJ.
[13] Richardson v Austin [1911] HCA 28 at [6] per Griffith CJ.
Retail store or market
The text of the ‘supermarket’ definition in s 5 of the Rules is as follows:
supermarket means a retail store or market the primary business of which is the sale of a range of food, beverages, groceries and other domestic goods.
Before going any further, there are several things that can be said about the plain grammatical meaning of these words.
Firstly, use of the word ‘a’ relates to a singular subject, being the following noun. Where there are two following nouns, in this case ‘store’ and ‘market’, it is necessary to consider the context in order to determine whether one or both nouns are within the singularity to which ‘a’ relates.
Secondly, the conjunction ‘or’ binds these nouns in a dichotomy – the subject is one or the other, but not both.
Thirdly, the adjective ‘retail’ is an attributive modifier of the noun or nouns to which it relates.
Used in this way, the adjective ‘retail’ is defined in the Oxford English Dictionary to mean ‘of, relating to, or engaged in retail’ where the noun ‘retail’ means ‘the action or business of selling goods in relatively small quantities for use or consumption rather than for resale’.[14] The Macquarie Dictionary provides the following meanings ‘relating to, connected with, or engaged in sale at retail: the retail price’ where the noun ‘retail’ means ‘the sale of commodities to household or ultimate consumers, usually in small quantities (opposed to wholesale)’.[15]
[14] Oxford English Dictionary, Online Edition, Oxford University Press, 2016.
[15] Macquarie Dictionary, Online 6th Edition, Macmillan Publishers Australia, 2015.
In the context of the ‘supermarket’ definition, I think it is quite clear that ‘retail’ refers to the sale of goods for consumption or use. This is consistent with the specified ‘primary business’ of the ‘retail store or market’, being the sale of ‘a range of food, beverages, groceries and other domestic goods’.
Whether ‘retail’ qualifies ‘store’, alone, or it modifies both ‘store’ and ‘market’ in the ‘supermarket’ definition is in dispute.
In search of guidance, and acting properly to assist the Tribunal, Mr Flaherty, drew attention to, but distinguished, Richardson v Austin.[16] In this case the High Court construed the phrase ‘in any of the street lanes entries or other public passages or places” and concluded that “as a matter of common English, the words “or other public passages or places” mean “or other public passages or public places””.[17]
[16] [1911] HCA 28.
[17] Ibid at [3] per Griffiths CJ; see also [13] per Barton J.
The important point of distinction presently, Mr Flaherty argues, hinges on a ‘market’ being something that is quite different than a ‘store’, whereas there is a commonality of character in each of the things listed in the phrase the High Court was construing in Richardson’s case. He asserts that the distinct character of a ‘store’ and a ‘market’ means that ‘retail’ qualifies the word ‘store’ but not ‘market’. This, he says, is analogous to the phrase ‘a green bird or dog’, whereby an ordinary reader would readily recognise the distinct character of the subject elements and understand that the adjective ‘green’ only applies to ‘bird’ and not to ‘dog’, as any other interpretation would be absurd.
The flaw in this reasoning is that a common modifier such as ‘retail’ can, sensibly, be applied to both ‘store’ and ‘market’. There is no absurdity interpreting the words ‘a retail store or market’ to mean ‘a retail store or retail market’. This notwithstanding, I accept that there are important differences of meaning between ‘store’ and ‘market’.
The word ‘store’ has a broad range of ordinary meanings, relating to holding a supply of goods and to shops of various sizes or kinds, for example:
·Macquarie Dictionary:
1. a large shop with many departments or belonging to a chain with many branches: a Myer store.
2. a small shop: corner store; video store.
3. a supply or stock of something, especially one for future use.
4. a. a place on a country property where supplies are held for sale or distribution to workers …
5. a storehouse or warehouse.
·Oxford English Dictionary:
11. a. A place where stores are kept, a warehouse; a storehouse.
12. A place where merchandise is kept for sale.
a. Chiefly N. Amer. and elsewhere outside the U.K. In early use, a shop on a large scale, and dealing in a great variety of articles. Now, equivalent to the British use of shop.
In order to narrow the broad ordinary meaning of ‘store’, an attributive adjective or prefix noun is required. Thus, in this instance, the word ‘retail’ has be put to that use.
The ordinary meaning of ‘market’ has a broad range of meanings rooted in trade. Without qualification it may be taken to mean the assembly of people for the purposes of buying and selling:
·Macquarie Dictionary:
1. a meeting of people for selling and buying.
2. the assemblage of people at such a meeting.
3. an open space or a covered building where such meetings are held, especially for the sale of food, etc.
4. a store for the sale of food.
·Oxford English Dictionary:
I. A place at which trade is conducted.
1. a. A meeting or gathering together of people for the purchase and sale of provisions or livestock, publicly displayed, at a fixed time and place; the occasion or time of this. Also: the people gathered at such a meeting.
2. The right granted to the lord of a manor, a municipality, etc., to establish a regular gathering for the purchase and sale of provisions or livestock.
3. a. An open space or covered building in which vendors gather to display provisions (esp. from stalls or booths), livestock, etc., for sale. Now also (U.S.): a supermarket.
Like ‘store’, in order to qualify or limit the ordinary meaning of ‘market’, an attributive adjective or prefix noun is required.
As can be seen, there is a significant degree of commonality of meaning in the words ‘store’ and ‘market’ in respect of ‘the sale’ of goods. In the context of the ‘supermarket’ definition, it is ‘the sale’ of the ‘range of food, beverages, groceries and domestic goods’ that gives form to the ‘primary business’ of the ‘retail store or market’.
The sale of goods requires a seller and a buyer, but a ‘retail store’ is one in which the seller transacts at retail with a buyer – this excludes wholesale. That this qualifier applies to a ‘store’ for the purposes of the definition is quite clear. I can find no good reason why ‘market’ would not be equally qualified.
I am not persuaded that the ordinary meaning of ‘market’ has an essentially retail character, without qualification. Quite clearly it does not. If the drafter’s intention was that ‘market’ would not be qualified by ‘retail’, that could readily have been achieved with the insertion of a preposition, the word ‘a’ before the word ‘market’ for example, or by inclusion of some other ‘market’ qualifier. But this was not done.
At this point, it is helpful to consider the ordinary meaning of the word ‘supermarket’:
·Macquarie Dictionary:
a large, usually self-service, retail store or market selling food and other domestic goods.
·Oxford English Dictionary:
A large store, typically one of a chain, selling a wide range of food and groceries, as well as household goods and other products.
As can be seen, elements of the Macquarie Dictionary definition have been adopted by the drafters of the Rules.
To my mind, consistent with the ordinary grammatical meaning of the words used in the definition, as ‘store’ and ‘market’ are dichotomous forms of a ‘supermarket’ and the primary business requirement applies equally to both forms, the retail character of a store would apply equally to a market. Otherwise, there would be little point in qualifying ‘store’ with ‘retail’ and doing so would be rendered redundant.
Primary business
The phrase ‘the primary business of which’ ties ‘retail store or market’ with ‘the sale of a range of foods, beverages, groceries and other domestic goods’. Quite clearly, ‘primary business’ refers to the principal, main or first business of the ‘retail store or market’, being ‘the sale’ of the specified range of goods.
There is no ambiguity here.
Range of goods
Mr Ranallo argues that the ‘supermarket’ definition is ambiguous in respect of the range of goods and it is necessary to consider the terms of the Explanatory Statement to the Rules. This document, so the argument goes, provides that the phrase ‘a range of foods, beverages, groceries and other domestic goods’ means ‘the type of store in which a person could do their weekly shopping from fresh food (e.g. dairy, meat, bread), pantry items, cleaning products, personal care items and other household staples (e.g. laundry pegs, plastic food wrap)’. On this basis, Mr Ranallo argues that these categories of goods are necessary requirements to satisfy the range of goods test in the ‘supermarket’ definition.
There are two flaws in this reasoning. Firstly, I do not think the phrase ‘a range of food, beverages, groceries and other domestic goods’ is in any way ambiguous. On the contrary, the meaning of the words is quite clear and can be understood without reference to extrinsic materials. It is simply an inclusive list of ‘domestic goods’, exemplified by the words ‘food’, ‘beverages’ and ‘groceries’ - it is indicative and inclusive, but not exhaustive, in respect of the range of goods within the ambit of ‘domestic goods’. The term ‘domestic goods’ is very broad – it refers to household or home goods. Nevertheless, the word ‘and’ in this context suggests that the range of ‘domestic goods’ should, at the minimum, include food, beverages, groceries and other domestic goods.
Secondly, it is not necessary to resort to extrinsic materials to understand the proper meaning or to determine whether a particular class of goods, or a particular range of items, might or might not be included. Even if such materials are considered, no different construction would result.
The Explanatory Statement simply provides further examples of the categories or kinds of goods that are within a ‘range’:
“supermarket” – means a retail store or market the primary business of which is the sale of a range of food, beverages, groceries and other domestic goods. Reference to a range of food, beverages, groceries and domestic goods means that it is the type of store in which a person could do their weekly shopping from [sic] fresh food (e.g. dairy, meat, bread), pantry items, cleaning products, personal care items and other household staples (e.g. laundry pegs, plastic food wrap)’. Reference to the primary business means that the definition would not extend to a department or variety store that has a deli or café section, nor does it include a farmer’s market selling a range of produce.
As can be seen, the reference to a range of goods is in reference to a store. The purported exclusion of a farmer’s market is without explanation. I understand this to mean that a farmer’s market might be expected to sell different kinds of farm produce, but this is unlikely to satisfy the range of domestic goods or the singularity of purpose the drafters had in mind.
This notwithstanding, the categories and kinds of goods referred to in reference to a ‘type of store where a person might do their weekly shopping’ might well be within the range of goods to be found a retail market, as a ‘type of store’, the primary business of which is ‘the sale of a range of food, beverages, groceries and other domestic goods’. It does not follow, and it should not be assumed, that the categories of goods referred to in the Explanatory Statement and the reference to ‘weekly shopping’ assume a mandatory complexion, as if those categories or shopping of that kind were inserted in the legislation as an essential requirement. There is no justification or authority to adopt such tests.
Even so, the range of goods inclusively but not exhaustively specified in the ‘supermarket’ definition is sufficiently broad that it would readily accommodate the categories of domestic goods a person might shop for to satisfy their day to day household needs. It does not follow, however, that goods of every description, sufficient to meet a person’s weekly household requirements, must be present for a ‘retail store or market’ to fall within the defined meaning of ‘supermarket’. Nor does it follow that a market offering a broader range of goods that those specified would be excluded from the meaning of ‘supermarket’. What is required is a range or a variety of food, beverages, groceries and other domestic goods. If the primary business of a market is the retail sale of such goods, then the market may satisfy the ‘supermarket’ definition.
The proposition Mr Ranallo presses that there is no discretion to assess on a case by case basis what range of goods ought to be sold by a supermarket, with respect, misconstrues the proper test to be applied. It is not for a decision-maker to determine a range of goods that ought to be sold in order to determine if a ‘retail store or market’ meets the ‘supermarket’ definition. The legislation does not confer any discretion to do so, nor is doing so required or authorised by the Rules or the Health Act. The legislation requires an assessment of the range of goods sold by the particular store or market. This is for the dual purposes of determining if the range of goods for sale meets the range specified in the ‘supermarket’ definition, and whether the sale of that range of goods is the primary business of the store or market.
Supermarket
In order to properly understand the purposes of the ‘supermarket’ definition, it is necessary to consider the legislative context. The word ‘supermarket’ appears in item 130 of Schedule 1 of the Rules:
Item
Kind of application
Requirements
130
New pharmacy (at least 1.5 km)
1. The proposed premises are at least 1.5 km, in a straight line, from the nearest approved premises.
2. The Authority is satisfied that, at all relevant times, there is:
(a) within 500 m, in a straight line, from the proposed premises:
(i) at least the equivalent of one full-time prescribing medical practitioner; and
(ii) a supermarket with a gross leasable area of at least 1 000 m2; or
(b) within 500 m, in a straight line, from the proposed premises a supermarket with a gross leasable area of at least 2 500 m2.
As can be seen, the location of premises proposed for approval under s 90 of the Health Act is subject to three key tests under this rule. Firstly, the premises proposed for approval must be at the epicentre of a circular area with a radius of 1.5 kilometres, within which no other approved premises exist. Secondly, in a circular area with a radius of 500 metres centred on the premises proposed for approval, there must be a ‘supermarket’ with a gross leasable area of 2,500 square metres unless a full-time prescribing medical practitioner is also located within this area, whereupon the minimum size of the supermarket (measured in gross leasable area, excluding loading bays) is reduced to 1,000 square metres. Thirdly, the supermarket must exist ‘at all relevant times’, being the date on which the application for approval is made and the date on which the application is considered by the Authority or, standing in those shoes, this Tribunal.
The purposes of these provisions are immediately apparent. Firstly, allowance is made for minimum distances to be maintained between approved pharmacy premises. The distances vary within the different items specified in Schedule 1 of the Rules. It may be accepted that the separation of approved pharmacies by distance is for the purposes of a sustaining a network of distributed pharmacies supplying pharmaceutical benefits to members of the public.
Secondly, approved pharmacy premises are to be located in close proximity to a ‘supermarket’, the minimum size of which depends upon the proximity of a full-time prescribing medical doctor. It can be accepted that a ‘supermarket’ replaces the previous conception of a catchment, as discussed by the Tribunal in Elhelwe’s case. Viewed in this way, a ‘supermarket’ serves the purpose of providing an attraction or locus where people congregate or visit for the purposes of domestic consumption or trade involving the buying and selling of domestic goods.
Thirdly, the requirement for the ‘supermarket’ to be present ‘at all relevant times’, being two specified dates, ensures that the supermarket test is satisfied on the application day as well as on the day on which the application is determined. It can be accepted that this is for the purposes of establishing continuity or an enduring presence of a ‘supermarket’ at times relevant to determination of the application.
The proposition that the purpose of the Rules is to support a viable and sustainable network of pharmacies dispensing pharmaceutical benefits to the public may be accepted, but it is only one element to consider. Another important purpose of the Rules and the Health Act is to provide public access to pharmaceutical benefits.
Thus, the specific purpose of including a ‘supermarket’ as a determinant in the Rules is to link pharmacy approval to hubs of domestic consumption, such that the supply of pharmaceutical benefits is readily accessible to consumers shopping for groceries and domestic goods. This linkage relates to purposes of sustaining a viable network of community pharmacies, on the one hand, and providing members of the public with distributed or local access to pharmaceutical benefits, on the other hand.
Inclusion of a ‘market’ in the definition clearly recognises that consumers of groceries and domestic goods shop, as people have done for centuries, in markets. The emergence of supermarkets is a relatively modern phenomenon which has sprung from the two elements specified in the definition – retail stores and markets.
Much was said during the hearing about terms of trade and temporal considerations. The Authority and Mr Renallo argue that a part-time market, which operates only for a few hours each week, is not consistent with the intended meaning of the word ‘supermarket’. And, furthermore, a market that functions for part of one day each week would not be consistent with the purposes and underlying policy of the Rules to support a viable network of pharmacies.
While I was initially attracted to this proposition, on closer consideration, I do not agree.
It would not be appropriate to construe the Rules by reference to a particular circumstance or fact arising in any case. The task of construction must be completed first, in order to properly understand the text and the purposes of the legislation, before any application to the facts of a particular case.
Quite plainly, as the Tribunal found in Elhelwe’s case, the defined meaning of ‘supermarket’ is not confined to a bricks and mortar understanding of a supermarket. It includes a market with vendors, traders or stallholders under a singular management, where the primary business of the market is the sale of a range of food, beverages, groceries and other domestic goods to consumers.
The definition of ‘supermarket’ in the Rules, or as ordinarily defined in common usage, does not expressly have a temporal character. The definition does not proceed by reference to opening hours, trading rules that may apply, or operational requirements other than those specified in respect of primary business and the range of goods offered for sale.
A market, by definition, may occur periodically. The interval or period on which a market occurs and whether that occurrence is regular or frequent are relevant considerations when determining the existence of a ‘supermarket’ for the purposes of the Rules.
For a ‘supermarket’ to operate in a meaningful way as a locus of consumption within a geographic area, as specified in the Rules, it would need to operate with some regularity and frequency. The measure of regularity and frequency of operation is not specified in the Rules, and it is a matter for assessment on the facts of each case. I do not think conventional conceptions of retail trading hours or days are helpful as a standard measure in respect of a ‘market’ for these purposes. This is because the possibility of operational variability is high and patterns of retail trade and domestic consumption are not fixed.
Mr Ranallo makes much of the alleged need for a ‘supermarket’ to trade on a retail basis during retail hours in parallel with the proposed pharmacy. The reason for this asserted link in trading hours is related, as I understand his submission, to ensuring custom to support the viability of the proposed pharmacy. There is another aspect to consider, however, relating to the provision of public access to pharmaceutical benefits in a location.[18] The trading hours or days and the location of the particular ‘retail store or market’ may be relevant considerations in each case. That said, I do not think the ‘supermarket’ definition implies a requirement for full-time trade for a minimum number of days or hours each week.
[18] See Walkerden v Wodonga Pharmacy Limited [2015] FCA 273 at [12] – [13], for example.
Apart from anything else, if it had been the intention of the drafters of the Rules to require a ‘supermarket’ to operate on a minimum number of hours or days each week, it would have been a matter of simplicity for a threshold of that kind to have been inserted in the definition. This was not done even though item 130(2)(a)(i) refers to a “full-time” prescribing medical practitioner if the gross leasable area of the ‘supermarket’ is at least 1,000 square metres. The requirement for a full-time medical practitioner is forgiven if the gross leasable area of the ‘supermarket’ is at least 2,500 square metres. Thus, as can be seen, the measure of the ‘supermarket’ is in terms of gross leasable area, or size, and not in terms of trading hours or days each week. From this it may be accepted that the larger the ‘supermarket’ the greater the number of people it might attract, such that a larger supermarket might not require a full-time medical practitioner to support the dual objectives of public access to pharmaceutical benefits and sustaining a viable network of pharmacies.
I think it can safely be said that for a ‘supermarket’ to function as a locus for domestic consumption, it would need to operate with sufficient regularity and frequency to permit consumers to supply their day to day household requirements in respect of the range of goods specified in the definition. A ‘market’ of the requisite kind, operating regularly on a weekly period, may be able to meet this test.
Whether a market operates with sufficient regularity and frequency to satisfy the ‘supermarket’ definition is a matter that must be assessed on the relative merits of each case. To a large extent, this will turn on questions of fact and degree with reference to the character of the market, the regularity and frequency of its operation, the details of its primary business and the context in which it exists.
Mr Ranallo argues that a ‘supermarket’ cannot be comprised of separate businesses. While this might be correct in respect of a supermarket in the form of a ‘retail store’, it is not correct in respect of a ‘market’ where sellers engage in retail trade with buyers. To my mind, it does not matter if the sellers in a market are separate businesses or individuals. The important point is that they come together for the common purposes of the ‘market’. If singularity is required, it is in respect of the business of the market and the location where it operates.
Much was said about extrinsic materials and the Agreement in Exhibit 5 during the hearing. As I have said, I do not consider it is necessary to refer to such materials to properly understand the purposes and the correct meaning of the ‘supermarket’ definition and, even if such materials are considered, no different construction is suggested.
The Rules are said to give forceful effect to the Agreement, which describes the specific objectives of ‘Location Rules’ in the following terms at cl 1.2.d:
The principles and objectives of this Agreement are to:
…
vi. ensure the Location Rules work for the benefit of the Australian community including increased access to community pharmacies for the population of rural and remote areas. The specific objectives of the Location Rules are to ensure:
- all Australians have access to PBS medicines;
- a commercially viable and sustainable network of community pharmacies dispensing PBS medicines;
- improved efficiency through increased competition between pharmacies;
- improved flexibility to respond to the community need for pharmacy services;
- increased local access to community pharmacies for persons in rural and remotes regions of Australia; and
- continued development of an effective efficient and well-distributed community pharmacy network in Australia.
As can be seen, a commercially viable and sustainable network of community pharmacies is but one of the stated objectives. Access to PBS medicines, competition, efficiency and flexibility to respond to community need are also given expression. This does not suggest any different construction of the ‘supermarket’ definition than that I have adopted.
At this point, I should note that s 90(3D) is in the following terms:
(3D) The Secretary must not grant approval under this section to a pharmacist in respect of particular premises if the Secretary is satisfied that on or after the day the approval would otherwise be granted:
(a)the pharmacist would be unable to supply pharmaceutical benefits at the premises; or
(b)the premises would not be accessible by members of the public for the purpose of receiving pharmaceutical benefits at times that, in the opinion of the Secretary, are reasonable.
The inclusion of a temporal test goes to the accessibility of the putative ‘pharmacy’. This does not bear upon the existence of a ‘supermarket’.
In sum on this point, the definition of ‘supermarket’ should be construed on the basis that:
(a)the word ‘retail’ modifies ‘store’ and ‘market’ and it refers to the sale of goods for consumption or use;
(b)the word ‘market’ includes a market located in a place and comprised of vendors, traders or stallholders under a singular management that operates periodically, but with sufficient regularity and frequency to act as a locus for domestic consumption;
(c)the assessment of ‘primary business’ is in respect of the retail store or market; and
(d)the phrase ‘the sale of a range of food, beverages, groceries and other domestic goods’ is an inclusive but not exhaustive categorisation of the kinds of goods, at the minimum, that underpin the primary business of the ‘retail store or market’.
Is the Wholesale Market, the Clearance Market and the Community Market, separately or in combination, within the meaning of ‘supermarket’?
Mr Ranallo submits that none of these markets satisfy the definition of ‘supermarket’. He argues that it is the primary business of PML that must be considered, as it is not permissible to disaggregate elements of business, or to cobble together elements to the exclusion of others, simply to meet the legislative tests.
There is some force to these arguments. But, as will appear, I do not agree.
As I have said, it is the primary business of the particular retail store or market that must be considered.
In this instance, where Market City is owned and operated by PML, and PML’s business is the operation and management of market and other facilities, it is necessary to consider the different markets that operate under the PML management umbrella, using Market City facilities.[19] PML’s business managing the Market City facilities and operations is not in the frame – no party has asserted that Market City, in toto, is within the ‘supermarket’ definition, or that this should be considered as a shopping centre of some kind under a different rule, such as rule 133 for example. Thus, it is not the primary business of PML that must be considered, it is the primary business of the markets that operate using Market City facilities that must be considered. Market City is the location where each of these markets operates under the management umbrella of PML.
[19] Exhibit 2.
The Wholesale Market operates on weekdays and in a limited form on Sundays. The primary business of this market is the wholesale supply of fresh produce to resellers. Members of the public are not permitted to access or engage in this market. It is located on the Perth City Markets site in a large warehouse style facility – the central trading area, in which over 50 traders lease premises. Seafood and meat traders are located in adjacent buildings, separated by a car park and a covered area which is used for the delivery and collection of goods when the Wholesale Market is operating.
The Clearance Market operates on Saturday mornings. The primary business of the Clearance Market is the sale of fresh produce, including fruit, vegetables, fish and meat to members of the public – wholesale traders supply goods to members of the public at retail. This market operates in the Wholesale Market premises. Members of the public are granted access to the market site for a limited period each Saturday. I understand that approximately 4,000 people attend each Saturday.[20]
[20] Exhibit 4, page 6.
The Community Market operates on Sundays until around 1pm. The primary business of this market is the sale of goods to members of the public by stallholders. The range of items offered for sale is wide, including personal and household items, foods, beverages, groceries and a wide array of other domestic goods. It operates in the collection and delivery area outside the Wholesale Market facility. Stallholders pay a fee to offer goods for sale from marked bays. Members of the public are granted access to the market site for a limited period each Sunday. It appears that over 5,000 people attend this Market each week.[21] Photographic evidence of the range of goods offered for sale at this market, including photographs taken on 21 June 2015 and 16 October 2016, is before the Tribunal.
[21] Ibid.
Clearly enough, the Wholesale Market, the Clearance Market and the Community Markets are markets in the ordinary sense. The issue is whether these markets separately or in combination meet the ‘supermarket’ definition under the construction I have adopted.
The Wholesale Market does not have a retail character and it does not supply the range of domestic goods specified in the definition. It does not meet the ‘supermarket’ definition.
The Clearance Market may be accepted as a retail market, the primary business of which is the sale of fresh produce, namely fresh fruit, vegetables, fish and meat, but not other groceries or other domestic goods. Alone, this market is unlikely to meet the range of goods test in the supermarket definition.
The Community Market can be accepted as a retail market. The primary business of this market is the sale of a range of domestic goods, although the range of goods traded and the number of stallholders may vary from week to week. PML states that the Community Market was established in July 1990 and:
Open every Sunday of the year, it boasts over 300 selling stalls – new and secondhand selling almost everything imaginable. It really is a bargain hunters [sic] paradise![22]
[22] Exhibit 2, page 14.
Mr Ranallo asserts that the range of goods offered for sale on 16 October 2016 and 15 May 2016, and generally, in this market is insufficient to satisfy the range of goods requirement in respect of primary business for the purposes of the defined meaning of ‘supermarket’. He has made extensive submissions in respect of meat, beverages, dairy products, bread, pantry items, cleaning products, personal care items and other domestic products, such as laundry pegs and plastic food wrap.
There are two things to say immediately. Firstly, as I have said, the sale of a range of food, beverages, groceries and other domestic goods relates to the primary business of the ‘retail store or market’.
And secondly, the range of goods is inclusive and not exhaustive – it is not properly construed to imply a set list of specific items, such as those Mr Ranallo has listed in written submissions, that must be offered for the ‘range’ to be satisfied. By definition a ‘range’ is broad in scope and not specific, although for present purposes, at the minimum, it must be established by evidence that the range includes ‘food, beverages, groceries and other domestic goods’. For the purposes of the ‘supermarket’ definition, the ‘range’ is not properly determined by exception. I do not think that listing goods that are not offered for sale in a particular case is especially helpful. It is the range of goods offered for sale that characterise the primary business of the market that must be considered. With regard to beverages, for example, if the evidence establishes that kinds of beverage are for sale, it is not to the point that a particular beverage, or a class of beverages perhaps, is not for sale. In order to satisfy the range of goods specified in the definition of ‘supermarket’, it is not necessary to establish that all or even most domestic goods a household might require on a weekly basis are offered for sale – if the evidence establishes that ‘sale of a range of food, beverages, groceries and other domestic goods’ is the primary business of the particular market, that is sufficient.
Furthermore, in the present case where domestic consumers have access to retail markets operating on each Saturday and Sunday in the same location under PML management, I think that it may be permissible to consider the range of goods from both markets, together. The primary business of each market is the retail sale of a range of goods to consumers, with the Clearance Market trading in fresh foods and the Community Market trading in a wide range of foods, beverages, groceries and other domestic goods. The locus these markets provide for domestic consumption, and the number of people attracted to the site each weekend, suggest a pattern of trade and consumption that may be consistent with weekly household shopping.
Even if it is impermissible to treat the Clearance Market and the Community Market as one for present purposes, as will appear, I am satisfied that the range of goods for sale in the Community Market meets the minimum threshold required by the ‘supermarket’ definition.
The photographic materials submitted by Mr Nguyen and Mr Ranallo establish that a range of food, beverages, groceries and other domestic goods were offered for sale at the Community Market on 16 October 2016.[23] It appears that a similar range of goods was offered for sale on 21 June 2015.[24] Having carefully considered the variety of goods for sale in the Community Market on 16 October 2016 and on 21 June 2015, I am satisfied that the following goods were offered for sale on one or both of those days:
[23] See Exhibit 6
[24] See Exhibit 1, Attachment B.
(a)fresh fruit and vegetables;
(b)meat;
(c)drinks of various kinds, including fruit juice and bottled or canned drinks;
(d)bread and other baked goods;
(e)confectionaries, including cakes, biscuits and desserts;
(f)preserved foods, including beef jerky, pickles, sauces and honey;
(g)nuts and spices;
(h)personal health and hygiene goods, including sunscreen, skin care, toothpaste, toothbrushes and toiletries;
(i)household goods, including kitchenware, glassware, cleaning products, ceramics and homewares;
(j)clothing, manchester and carpets;
(k)recreational goods, including books, toys, games, gifts, candles, pet products and food, jewellery, leather goods, fishing and camping goods;
(l)pet foods and pet products; and
(m)a variety of other goods, including telephone goods, hardware, tools, collectibles, renewable energy products, fresh flowers and plants.
I should say immediately, that the present materials establish that some or all of these goods were offered for sale on each of the particular days on which photographs were taken. An inference may be drawn that goods of these kinds may be offered for sale at the Community Market in the usual course, week by week, but the precise range of goods may vary from market to market.
Mr Ranallo argues that there was little meat and no dairy products offered for sale at the Community Market on one or both days when photographs were taken. That may be correct but it does not follow that the Community Market cannot meet the ‘supermarket’ definition as a result. The test of a ‘supermarket’ does not stand or fall on whether meat and dairy products are offered for sale if it is established that the primary business of the market is the sale of a range of food, beverages, groceries and other domestic goods. Furthermore, a person would be able to attend the PML site on a Saturday in order to purchase fresh foods from the Clearance Market.
To my mind, it is quite clear that goods offered for sale at the Community Market have a very wide compass, but there is a sufficient range of food, beverages, groceries and other domestic goods likely to be offered for sale each week to satisfy the primary business range of goods test in the ‘supermarket’ definition. I so find.
As I have said, aside from questions of regularity and frequency of operation, temporal considerations in respect of trading hours or days each week do not bear upon the meaning of ‘supermarket’ for the purposes of the Rules. The Community Market is a weekly event of long standing. PML states that Market City regularly attracts crowds of 5,000 or more people.[25] I am satisfied that the regularity and frequency of the Community Market, alone, occurring each Sunday, or in combination with the Clearance Market, occurring each Saturday, is sufficient to satisfy the ‘market’ element of the ‘supermarket’ definition.
[25] Exhibit 2, page 11.
Furthermore, the location and context in which the Community Market operates supports this conclusion. The Market City facility operates seven days each week, with up to 5,600 people on site.[26] The retail centre in which Mr Nguyen’s chemist shop is located, the site of the putative pharmacy subject of the application for approval, operates every day of each week. The Wholesale Market, the Clearance Market and the Community Market operate every week, with market activities occurring at Market City every day. Members of the public and household consumers access the Clearance Market (over 4,000 people) and the Community Market (an average of 5,000 people) on respective Saturdays and Sundays each week.[27] Traders and vendors in the Wholesale Market offer goods for sale to consumers in the Clearance Market and the Community Market. This context sets the Community Market apart from the kinds of flea markets or other ad hoc, occasional or community car-boot sale or swap-meet type markets to which the parties referred in submissions.
[26] Exhibit 4, page 4.
[27] Ibid, page 6.
To my mind, while the Community Market may have some characteristics that may be likened to other kinds of market, in terms of stallholder arrangements and, in part, the range of goods offered for sale for example, it is distinguished on the facts. It is a long established, substantial, weekly retail market, operating in a commercial market facility environment, the primary business of which is the sale of a range of food, beverages, groceries and other domestic goods. This context and the volume of people it attracts, and the continuity of its operation over many years supports a finding that the Community Market is a locus for domestic consumption on a weekly basis.
It follows that the Community Market is within the meaning of ‘supermarket’ for the purposes of item 130 in Schedule 130 of the Rules.
Did a ‘supermarket’ exist at ‘all relevant times’?
Mr Ranallo argues that the Community Market only occurs on Sundays and, for this reason, it did not exist ‘at all relevant times’ for the purposes of item 130 in Schedule 1 of the Rules.
This is not correct.
The phrase ‘all relevant times’ refers to two specific dates – the date of the application and the date on which the Authority (or presently this Tribunal) determined the application.
It is plain enough that The Community Market was not operating on the relevant dates - the Community Market operates only on Sundays and neither of the two relevant dates was a Sunday. But it does not follow that the market did not exist or that there was not a ‘supermarket’ for the purposes of item 130 on those dates.
One only has to refer to the PML documents in Exhibit 2 to find that the Community Market has been in existence, operating with regularity each Sunday, since June 1990. I do not accept the proposition that for a ‘supermarket’ to exist on the relevant dates it has to trade on those days – a supermarket does not just exist when it is open and trading; it continues to exist when it is closed temporarily between opening hours. To my mind, there is no good reason why the same assessment cannot be made with respect to the Community Market. The regular and frequent periodic nature of this Market and its enduring operation on every Sunday are consistent with this conclusion. That said, I would accept that if the Market’s operation was less regular or less frequent a different result might be obtained on this point. These are matters of fact and degree. I must address the present materials and the facts in this case.
I am satisfied that the Community Market has sufficient regularity, frequency and continuity of operation to meet the requirement set out in items 130(2)(a)(ii) or (b) and 130(3) in Schedule 1 of the Rules.
CONCLUSION
Mr Nguyen’s application for approval of a pharmacy satisfies the requirements of rule 130. At all relevant time there was a ‘supermarket’ within 500 metres of the proposed premises, on which he is presently operating a chemist business without approval under s 90 to prescribed PBS medicines.
The ‘supermarket’ is in the form of the Community Market, which operates with long-established regularity on each Sunday in the context of Market City commercial market facilities. The Market has a retail character. The primary business of the Market is the sale of a range of food, beverages, groceries and other domestic goods.
The ‘supermarket’ existed at all relevant times, even though it was not open or trading on the dates specified in s 130(3) in Schedule 1 of the Rules.
For these reasons the decision under review must be set aside.
DECISION
The Australian Community Pharmacy Authority recommendation against Mr Nguyen’s application for approval of a new pharmacy is set aside. Instead, the Tribunal decides that Mr Nguyen’s application satisfies the legislative requirements and recommends it for approval.
I certify that the preceding 124 (one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ....................[Sgd]....................................................
Administrative Assistant
Dated 30 November 2016
Date(s) of hearing 28 and 29 September 2016 Date final submissions received 25 October 2016 Counsel for the Applicant Mr T Flaherty Advocate for the Applicant Mr M Flaherty Advocate for the Respondent Mr B Dean Solicitors for the Respondent Australian Government Solicitor Counsel for the Joined Party Mr M Mirzai Advocate for the Joined Party Mr B Douglas Solicitors for the Joined Party Rowe Bristol Lawyers
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