Nguyen and Australian Community Pharmacy Authority
[2015] AATA 555
•30 July 2015
Nguyen and Australian Community Pharmacy Authority [2015] AATA 555 (30 July 2015)
Division General Division File Number(s)
2015/1567
Re
John Nguyen
APPLICANT
And
Australian Community Pharmacy Authority
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Deputy President J W Constance
Date 30 July 2015 Place Sydney
IT IS DIRECTED that, in accordance with section 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth), Mr Ranallo is to be joined as a party to the application for review.
................................[sgd]........................................
Deputy President J W Constance
Catchwords
PRACTICE AND PROCEDURE – joinder - application to supply pharmaceutical benefits from particular premises – nearby pharmacy – consideration of whether interests are affected by decision under review - whether competitor should be joined as a party
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 30(1A), 31(1)
National Health Act 1953 (Cth)
National Health (Australian Community Pharmacy Authority Rules) Determination 2011Cases
Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Anor [1994] FCA 996
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (1980) 50 FLR 1
Edwards v. Australian Securities Commission & Ors [1997] FCA 38.
United States Tobacco Company v Minister for Consumer Affairs and Ors (1988) 20 FCR 520
Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273
REASONS FOR INTERLOCUTORY DECISION
INTRODUCTION
In September 2014, Mr Nguyen lodged an application under the National Health Act 1953 (Cth) for approval to supply pharmaceutical benefits from premises in Canning Vale, Western Australia.
In accordance with procedures set out in the Act, the application was referred to the Australian Community Pharmacy Authority. The role of the Authority is to recommend to the Secretary of the Department of Health that such an application be either approved or not approved.
In February 2015, the Authority recommended to the Secretary that Mr Nguyen’s application not be approved. On 2 April 2015, Mr Nguyen applied to this tribunal to review the Authority’s decision.
Mr Ranallo is the owner of a pharmacy which is situated approximately 3.5 kilometres from the premises in Canning Vale at which Mr Nguyen is seeking to be authorised to supply pharmaceutical benefits. On 21 May 2015, Mr Ranallo applied for an order making him a party to these proceedings. Mr Nguyen opposes the making of such an order.
LEGISLATION30 JULY 2015
Subsection 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) provides:
Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.
Subsection 31(1) provides:
Where it is necessary for the purposes of this Act to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.
CONSIDERATION
The grounds of Mr Ranallo’s application
In his application, Mr Ranallo stated:
… if the Applicant’s appeal against the decision of the Respondent is upheld by the Tribunal and the proposed pharmacy is established, it is likely that the Applicant’s proposed pharmacy will have a significant negative impact on the profitability and value of Mr Ranallo’s existing pharmacy business.[1]
[1] Application to be made a Party to a Proceeding, filed 21 May 2015.
Mr Nguyen’s argument
It was put on behalf of Mr Nguyen that Mr Ranallo must show that his interests are affected by the decision under review, rather than any decision the Tribunal may make in exercising its power to review. It is insufficient for Mr Ranallo to show that his interests may be adversely affected by a decision of the Tribunal recommending that Mr Nguyen’s application be granted. As the Authority recommended that Mr Nguyen’s application be refused, the status quo has not changed so far as Mr Ranallo is concerned.
Further it was argued that consideration of the relevant provisions of the National Health Act indicates that Mr Ranallo’s interests are not affected. Section 105AD of the Act permits an application to be made to the Tribunal only when the Authority recommends that an application to supply pharmaceutical benefits be refused; there is no right to seek review given to any person or body corporate adversely affected by the decision. If Mr Ranallo’s application to be joined is successful he will enjoy a right to oppose Mr Nguyen’s application which he did not have when the matter was being considered by this Authority.
Finally, it was put that even if I am satisfied that Mr Ranallo’s interests are affected, subsection 30(1A) clearly gives the Tribunal a discretion refuse his application. The reasons the Tribunal should exercise the discretion given to it were stated to be:
(a)the joinder of a further party would increase the costs associated with the proceedings;
(b)Mr Ranallo ultimately seeks to support the position of the Authority; the Authority is in a position to advance its position without the support of Mr Ranallo;
(c)Mr Ranallo cannot add anything of substance to the proceedings as the primary issue in dispute turns on the interpretation of the term “supermarket” and the location of a supermarket within a certain distance of the proposed premises; and
(d)The Respondent did not regard the views of Mr Ranallo as relevant when considering the application; a number of pharmacy owners were invited to comment on the application however not Mr Ranallo.
Reasoning
Is Mr Ranallo a person whose interests are affected by the decision under review?
The first step is to look to the words used in subsection 30(1A). It provides that any person (other than the Applicant) “whose interests are affected” may apply to be made a party. It is important to note that the word “interests” is not qualified. This suggests that it is not necessarily a requirement of the subsection that an applicant to be joined as a party show that his or her interests were adversely affected by the decision under review. It is clear however that the applicant must show that it is the decision under review, rather than any decision that this Tribunal may make, which affects his or her interests.
In Edwards v. Australian Securities Commission & Ors[2] the Full Court of the Federal Court considered an appeal from a decision of this Tribunal. The decision of the Tribunal was that the appellant was not entitled to apply to the Tribunal for a review of the Commission’s decision to register a company as a foreign corporation under the Corporations Law. The Tribunal had decided that the appellant was not a person whose interests were affected by the decision under review. The application to the Tribunal was made under section 27 of the Administrative Appeals Tribunal Act 1975 (Cth) rather than under section 30, but the relevant wording of each section is the same.
[2] [1997] FCA 38.
The Full Court referred to its decision in United States Tobacco Company v Minister for Consumer Affairs and Ors [3] and in particular to the following:
The term “interest” has long been an expression used in the law with respect to parties so as to require an involvement with a case greater than the concern of a person who is a mere intermeddler or busybody. Nevertheless, the criterion for standing prescribed by the Act is not a restrictive one. The broadest of technical terms has been selected. The necessary interest need not be a legal, proprietary, financial or other tangible interest. Neither need it be peculiar to the particular person.
[3] [1988] FCA 213; (1988) 20 FCR 520 at 527.
The Full Court continued, referring to the judgment of Gummow J in Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Anor:[4]
It is apparent that it is critical to the resolution of this aspect of the appeal [being the question of whether the appellant’s interests were affected by the decision under review] to determine whether the Tribunal correctly understood the purport of Alphapharm. In that case a question had come before the trial judge whether the respondent was a person the interests of which were affected by a decision made under the Therapeutic Goods Act (1989) (Cth) and which was, under s60(2) of that Act, entitled to lodge a request that the Minister reconsider that decision. Alphapharm had applied for registration of its generic cimetidine on the Therapeutic Goods Register pursuant to s23 of the Therapeutic Goods Act. Registration took place in February 1993. It was that decision which the respondent companies requested the Minister to reconsider. The Minister refused to do so on the grounds the respondent companies were seeking to use the review process for commercial purposes. The matter came to the Court by way of judicial review.
Gummow J at 394 – 96 said that in answering the question whether there was standing to seek reconsideration of the initial decision to register, the registration system itself provided for in the Therapeutic Goods Act was of central importance. …
… an interpretation of the legislation which treated a third party as a person interested in, in the sense of opposed to, a grant of registration would not sit well with that object of the legislation which is concerned with the timely availability of therapeutic goods, after evaluation by an expert body and pursuant to a “complex and delicate administrative scheme.”
[4] [1994] FCA 996.
In both the Alphapharm and Edwards judgements, the Courts held that the applicants for review did not have standing. In reaching their conclusions, the Courts regarded the scheme to the relevant Acts of critical importance.
In Re Control Investments Pty Ltd v Australian Broadcasting Tribunal,[5] Davies J said, in reference to section 30 of the Administrative Appeals Tribunal Act:
In their context in ss27 and 30, the words "interests are affected" denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest. ...
…
However, a person seeking joinder must be able to identify a relevant interest which is his. In other contexts, dicta in cases have used the adjectives "real", "genuine" and "direct" to describe the relationship required between the decision and the interest. Sections 27(1) and 30(1) do not make use of adjectives but they do require that the applicant demonstrates genuine affection of an interest which attaches to him. The nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review.
[5] (1980) 50 FLR 1 at 8-9.
Having given careful consideration to the words used in section 30 and guided by these judgments, I conclude that this section does not necessarily require an applicant to be joined to show that his or her interests have been adversely affected by the decision under review. There is nothing in the words of the section to suggest that it should be read down in this way.
Justice Mortimer considered the scheme of the Act in relation to pharmacies in Walkerden v Wodonga Pharmacy Pty Ltd[6]. Her Honour referred to the 2011 Rules made under section 99L of the Act as a result of the conclusion of the fifth Community Pharmacy Agreement and concluded:[7]
Clearly the objectives of the 2011 Rules, as set out in cl 1.2(d)(vi) of the fifth Agreement, are of principal relevance to the construction issues on this application. Those objectives have twin themes: a sustainable and viable community pharmacy network (which focuses at least as much on the interests of pharmacy owners as on the community) and access to pharmaceutical benefits (with a focus only on the community’s interests). In that sense, the location rules are an attempt to balance community access with commercial sustainability.
...
... The 2011 Rules recognise, in my opinion, that sustainable and viable pharmacies are also of benefit to the community, in the continuity of supply of pharmaceutical benefits.
[6] [2015] FCA 273.
[7] At paras 62 and 63.
The decision under review refused Mr Nguyen’s application to supply pharmaceutical benefits in a pharmacy which would have been within sufficient proximity to that operated by Mr Ranallo as to be a commercial competitor. On the basis of the statement of Mr Ranallo,[8] I am satisfied that the reviewable decision affected his interests. Those interests are relevant to the scheme established by the Act. They are not inconsistent with the legislative scheme as was found to be the case in Alphapharm and Edwards. It does not matter that the effect on his interests was beneficial.
[8] See paragraph 7.
On the basis of the findings set out in the preceding paragraph, I am satisfied that Mr Ranallo has established that he is a person whose interests are affected within the meaning of subsection 30(1A) of the Administrative Appeals Tribunal Act 1975.
Should the Tribunal exercise its discretion to make Mr Ranallo a party to the proceeding?
The decision I have reached is consistent with many previous decisions of the Tribunal, albeit that many of those decisions were made without opposition. Commonly, the Tribunal has joined the proprietors of pharmacies which could be commercial competitors of the subject pharmacy. In each of these cases the effect of the reviewable decision was beneficial to the applicant to be joined in that it prevented further commercial competition. Whilst I am not bound by previous decisions of the Tribunal, there is benefit in the Tribunal being consistent in its decision-making.
When a party is joined in matters such as this it has been common for that party to present most, if not all, of the evidence in contradiction of the evidence put before the Tribunal by the applicant for review.
In 1996, the Tribunal had this to say when deciding that the proprietors of neighbouring pharmacies should be joined as parties to an application for the review of a decision recommending that an application to supply pharmaceutical benefits from nearby premises not be approved:
In each case [being judgements of the Federal Court of Australia] the applicant was held not to be a “person aggrieved” within the meaning of that term in the ADJR Act because their interest in the outcome was related to their commercial interest. Their interest was said to be “in seeing its rival hindered, frustrated or delayed”. It was an interest which was irrelevant in considering an application for approval of a pharmacy.
The nature of the current proceedings before the Tribunal are different to those in the Federal Court quoted above. The Tribunal has an administrative role is charged to the task of gathering information so that it can be placed in the position of being able to arrive at the correct decision according to the scope and purpose of the relevant legislation. The term “person aggrieved” in the ADJR Act does not equate with “any other person whose interests are affected by the decision” in section 30 (1A) of the Administrative Appeals Tribunal Act 1975.
I found that although the interests of Mr Gardiner and Ms Grant-Taylor in the outcome of these proceedings were commercial in nature their interests were affected by the decision. Their objective was to call evidence and make submissions which they believed would result in the Tribunal making the correct decision according to the Rules, which coincidentally would also potentially have an effect on their commercial operations. I felt that they may have been able to assist in the process.[9]
[9] Malouf and Australian Community Pharmacy Authority and Ors 18 July 1998 AAT Decision No 11078 at paras 7-9.
I am not satisfied that the joinder of Mr Ranallo would significantly increase the costs associated with the proceedings. My experience in matters where a proprietor of an existing pharmacy has been joined as a party is that the joined party provides most, and commonly all, of the evidence in response to the case put by the applicant. This is an efficient manner of dealing with the application as usually the party joined has a detailed understanding of the local conditions. This rarely results in a duplication of evidence provided by the Authority and it does assist the Tribunal in reaching its decision in accordance with the principles set out in section 2A of the Administrative Appeals Tribunal Act.[10]
[10] Section 2A provides:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
The fact that the Authority did not seek the views of Mr Ranallo when making the reviewable decision is not a valid reason for the Tribunal to exclude him from the opportunity to make submissions to it. Mr Ranallo has established that he is a person whose interests are affected as required by the legislation governing the proceedings.
I am satisfied that the discretion to permit Mr Ranallo to be made a party to this proceeding should be exercised in his favour.
CONCLUSION
There will be a direction that Mr Ranallo be joined as a party to these proceedings.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance ...............................[sgd].........................................
Associate
Dated 30 July 2015
Date(s) of hearing 16 June 2015 Date final submissions received 19 June 2015 Solicitors for the Applicant M Flaherty Solicitors for the Respondent B Dean; Australian Government Solicitor Solicitors for the Other Party Rowe Bristol Lawyers
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