Nidigal and Australian Community Pharmacy Authority
[2007] AATA 1987
•28 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1987
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4056
GENERAL ADMINSITRATIVE DIVISION ) Re GURUMURTHY NIDIGAL Applicant
And
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondent
DECISION
Tribunal Senior Member M D Allen Date28 November 2007
PlaceSydney
Decision The decision under review is affirmed.
....................[sgd]..........................
M D Allen Senior Member
CATCHWORDS
HEALTH AND COMMUNITY SERVICES – review of decision declining to recommend applicant be approved to supply pharmaceutical benefits from proposed premises – approval subject to applicant retailing general merchandise with a range and variety of product lines – supermarket – premises not directly accessible by public from within supermarket – statutory interpretation – lease restrictions – primary business – decision under review affirmed
LEGISLATION
National Health Act 1953 sections 90, 99J, 99K and 99L
The National Health (Australian Community Pharmacy Authority Rules) Determination 2006 section 6, item 6 of part 1 schedule 1, item 201 and item 201(d) of schedule 2
National Health (Australian Community Pharmacy Authority Rules) Amendment Determination 2007(1)
Administrative Appeals Tribunal Act 1975 section 37
CASE LAW
Pacific Hydro Ltd and Ors v Office of the Renewable Energy Regulator (2006) 150 FCR 124
REASONS FOR DECISION
28 November 2007 Senior Member M D Allen 1. By application made on the 24th day of August 2007 the Applicant sought review of a decision by the Respondent on the 27th day of June 2007 declining to recommend that the Applicant be approved to supply pharmaceutical benefits from proposed premises situated at the corner of Greenmeadows Drive and Ocean Drive Port Macquarie, New South Wales.
2. Section 90 of the National Health Act 1953 provides inter alia that the Secretary of the Department of Health and Ageing may upon application by a pharmacist who is willing to supply pharmaceutical benefits on demand at particular premises approve that pharmacist for the purpose of supplying pharmaceutical benefits at or from those premises.
3. Any such application shall be referred to the Australian Community Pharmacy Authority, a body created pursuant to s99J of the NHA. Pursuant to s99K NHA it is the duty of the authority to consider applications made under s90 of the NHA and recommend to the Secretary of the Department of Health and Ageing whether or not the application should be approved.
4. In making its recommendation the Authority is bound by rules made by the Minister administering the National Health Act – s99L NHA. In this matter the approval was sought in accordance with the provisions of item 106 (Long Distance Relocation) of Part 1 of Schedule 1 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 as amended by the National Health (Australian Community Pharmacy Authority Rules) Amendment Determination 2007 (No 1).
5. Item 201 of the abovementioned Rules sets out the following requirements that must be met in order for an application pursuant to s90 NHA to be recommended for approval. It is not disputed in these proceedings that the Applicant meets all those requirements save one namely 201(d) which reads:
“The proposed premises are not directly accessible by the public from within a supermarket.”
6. “Supermarket” is defined in s6 of the Determination as:
“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.”
7. The Applicant gave evidence that he is a practicing pharmacist and owns several pharmacies. On or about 22 March 2007 he entered into a contract to purchase the business known as the Greenmeadows General Store. The business is situated in a building at the corner of Greanmeadows Road and Ocean Drive Port Macquarie, NSW.
8. On or about 21 March 2007 the Applicant entered into a contract that would effect the removal of an approval to supply pharmaceutical benefits from premises at Marrickville in Sydney to the Port Macquarie premises.
9. The subject premises can be described as a stand alone building which currently operates as a petrol station and general store including a newsagency. Photographs of the premises are at document T37, the documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975.
10. As a condition in obtaining the consent of the Lessor of the premises at Port Macquarie to have the lease on the premises assigned to him, the Applicant consented to a variation of the lease so that clause 10(1) of the said lease now read:
“Use or permit or suffer the demised premises or any part thereof to be used otherwise than for the conduct of the business of a general store, post office, service station and news agency as well as that of a pharmacy PROVIDED THAT the use as a pharmacy must not be the predominant use and no more than one-third of the total floor area of the demised premises shall have on display for sale pharmaceutical products and items AND PROVIDED THAT no warranty is given by the Lessor that such use is a permitted use of the premises.”
11. In his affidavit the Applicant stated:
“At the Premises, I will stock the range of items currently stocked by the existing Greenmeadows General Store. The type of non-pharmaceutical grocery items stocked are listed below:
(a) confectionary including packaged sweets and chocolates
(b) individually wrapped ice-creams and ice-lollies
(c) soft drink, juice and other non-alcoholic beverages
(d) packaged biscuits and chips
(e) milk
(f) bread
(g) a small selection of cleaning items, such as dishwashing liquid and laundry powder.”
12. The Applicant also stated that the business will continue to sell petrol. Currently no walls separate the service station from the general store. In other evidence the Applicant stated that no tobacco products, fresh food items, frozen foods items, cakes, etc or spread would be sold.
13. The local authority has given permission for the proposed development, provided that the premises continue to retail general merchandise “with a range and variety of product lines”.
14. As I understand the Applicant’s submissions, he contends, that the proposed business does not constitute a “supermarket” as that terms is defined in s6 of the Determination and that in any event the whole of the subject premises constitutes a pharmacy so that it cannot be said that contrary to item 201 in Schedule 2 to the Rules the proposed premises are directly accessible by the public from within a supermarket.
15. It is nothing to the point submits the Applicant that the pharmacy will sell a large range of items in addition to therapeutic goods.
16. I stated in the course of evidence and I adhere to the view that I can take what has been referred to as “official notice” of what generally is accepted to constitute a “supermarket” in general speech and that most pharmacies sell a range of items other than medicines and other than therapeutic goods. That said, I find that the proposed development by the Applicant extends the concept of retailing beyond what is the norm. No party, however, was able to direct me to any restrictions, apart from ethical e.g. tobacco products, upon what kind and volume of goods might be retailed from premises operating as a pharmacy.
17. The modern approach to statutory interpretation was discussed by the Full Court of the Federal Court in Pacific Hydro Ltd and Ors v Office of the Renewable Energy Regulator (2006) 150 FCR 124. At para 131 the Court referred to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, their Honours said that the “modern approach” to statutory interpretation is that it is not necessary to find ambiguity before the Court may look to extrinsic material to interpret statutory provisions. The Court then set out the following passage from the judgement in CIC Insurance Ltd (supra) namely:
“(a) Insist that the context be considered in the first instance, and not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy … If the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the Court in preferring to the literal meaning an alternative construction which … is reasonably open and more closely conforms to the legislative intent.”
18. Applying these principles it is clear that the subject premises are a retail store but that then raises the question of what would be its primary business.
19. Document T4 is an Explanatory Statement issued by the Minister for Health and Ageing relating to the 2006 Determination (No PB23 of 2006). At paragraph 6 to the Attachment to the Explanatory Statement an explanation is offered of various terms used in the Determination. Of the term “Supermarket” the following is stated:
“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 for 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 include 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.
20. In applying the facts of this matter to the definition I find that the primary business of the premises will be the sale of a range of food, beverages and other domestic goods, in particular petrol and newspapers and magazines.
21. The fact that the variation to the lease requires that only one third of the premises can be used for the display of pharmaceutical items is not determinative as no doubt a large part of the pharmaceutical sales would be prescription items which are not on display. Likewise it may be a moot point as to what is a pharmaceutical product as opposed to something else, e.g. is a pharmaceutical product one which is restricted for sale in pharmacies only?
22. The lease, however, provides that the pharmacy use must not be the predominant use. This restriction, plus as stated the sale of petrol , oil and lubricants, newspapers and soft drinks together with various other items changes the complex from a pharmacy selling additional items to what is in effect more akin to what is referred to as a convenience store and thus within the definition of a supermarket in determination.
23. As the whole of the premises can be classed as a “supermarket”, it seems to me to be axiomatic that the pharmacy part of the mixed business can only be accessed through the supermarket.
24. I am strengthened in this conclusion by what quite clearly is the mischief the rules seek to obviate. Quite clearly the rules seek to restrict supermarkets as that term is generally understood incorporating pharmacies as part of their premises, so that shoppers can have prescriptions filled or purchase other pharmaceutical goods whilst shopping for other domestic items. The definition of supermarket has been extended in the Rules and the Applicant’s proposed business is the type of business that the definition and item 201 were designed to prevent. It is, to my mind, nothing to the point that a pharmacist has possession of the whole of the premises.
25. The decision under review is affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.
Signed: ..........[sgd]...........
Mwela Kapapa, AssociateDate of Hearing: 21 November 2007
Date of Decision: 28 November 2007
Solicitor for the Applicant: Cropper Parkhill SolicitorsSolicitor for the Respondent: Australian Government Solicitor
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