Nguyen and Australian Community Pharmacy Authority

This matter concerned an application by Chele Pty Ltd for approval to supply pharmaceutical benefits at premises located within "Market City" in Canning Vale, Western Australia. The Australian Community Pharmacy Authority (the Authority) had recommended against the application, leading Mr Nguyen, a shareholder and director of Chele, to seek a review of that decision. The core of the dispute revolved around whether a "supermarket" existed within 500 metres of the proposed pharmacy premises, as required by the National Health Act 1953 and associated Rules.

The Tribunal was required to determine the meaning of "supermarket" and "retail store or market" within the context of the legislative requirements. Specifically, it needed to ascertain whether the operations at Market City, including its wholesale fresh food market, clearance market, community market, and retail centre, constituted a "supermarket" for the purposes of the Act. The Tribunal also had to consider the temporal requirement that such a facility must be present "at all relevant times."

The Tribunal reasoned that the legislative intent behind requiring a supermarket was to ensure access to a range of essential goods, particularly food and domestic items. It found that the various market operations at Market City, collectively, met this requirement, with the wholesale market, in particular, demonstrating a primary business focused on the sale of a wide range of food and groceries. The Tribunal further held that the term "market" could encompass operations with independent vendors under a singular management and that periodic, regular market operation could satisfy the "at all relevant times" criterion, establishing continuity. The existence of a supermarket was not confined to its operating hours.

Consequently, the Tribunal concluded that the requirement for a supermarket within 500 metres of the proposed premises was satisfied. The Authority's recommendation against Mr Nguyen's application was set aside, and the Tribunal recommended that the application be approved.