Re Tascone and Australian Community Pharmacy Authority

[2011] AATA 724

CATCHWORDS – HEALTH – PHARMACIES – COMMUNITY PHARMACIES – approval for supply of pharmaceutical benefits – relocation to urban locality (additional pharmacy) – requirement of item 108 of Determination No. PB 23 of 2006 regarding catchment area  – meaning of catchment area – purpose of regulation of number of pharmacies informs criteria by which catchment area identified – may be more than one basis that would lead to people using the proposed premises – approval recommended.

PRACTICE AND PROCEDURE – conducting a view – purpose of view  – view not in place of the evidence – imperative tribunal act, and be seen to act, independently and impartially – requirements of procedural fairness – any extraneous evidence to be put to parties.

PRACTICE AND PROCEDURE – role of decision-maker in review proceedings – distinction between role of decision-maker in merits review tribunal and in adversarial appellate proceedings – a party in a merits review tribunal but not in an appellate court where its role, if any, limited to submissions on its powers and procedure. 

WORDS AND PHRASES – “catchment area”

Applicant VEAL 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; 222 ALR 411; 87 ALD 512; 80 ALJR 228
Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (1980) 47 FLR 131
Bushell v Repatriation Commission (1992) 175 CLR 408
Chandler & Co. v Collector of Customs [1907] HCA 81; (1907) 4 CLR 1719
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577; 2 ALD 60
Esber v Commonwealth of Australia and Another (1992) 174 CLR 430
Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255
Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1
Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329; 8 AAR 285
Ladic v Capital Territory Health Commission (1982) 5 ALN No 45
McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354; 6 ALD 6
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429; 83 ALJR 1123; 111 ALD 15
Perpetual Trustees Australia Ltd v Wallace [2007] FCA 527
R v Lilydale Magistrates’ Court; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122
Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696
Re Dunsdon and Australian Community Pharmacy Authority [2011] AATA 82; (2011) 119 ALD 696
Re Easton and Repatriation Commission (1987) 12 ALD 777
Re Elkhishin and Australian Community Pharmacy Authority [2008] AATA 1134
Re Hargreaves and Australian Community Pharmacy Authority [1995] AATA 326; (1995) 41 ALD 147
Re Lobo and Department of Immigration and Citizenship [2010] AATA 583; (2010) 116 ALD 639; 52 AAR 304
Re McGourty and Repatriation Commission (1988) 9 AAR 87
Re Neelabindu Pty Ltd and Australian Community Pharmacy Authority [2009] AATA 532; (2009) 110 ALD 228
Re Newman and Australian Community Pharmacy Authority [2010] AATA 1055; (2010) 119 ALD 227
Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44
Re Times Consultants Pty Limited v Collector of Customs (Queensland) [1987] FCA 311
Scott v Numurkah Corporation [1954] HCA 14; (1954) 91 CLR 300
Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147
Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
VHAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 376
Whitton v Falkiner [1915] HCA 38; (1915) 20 CLR 118
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1

Acts Interpretation Act 1901 ss 46A, 48, 49, 50
Administrative Appeals Tribunal Act 1975 ss 25, 33(1)(a), 33(1AA), 39(1), 43(1)
Broadcasting and Television Act 1942  ss 92F(4), 92F(4A)
National Health Act 1953 ss 85, 85A, 87, 88, 89, 90, 90(1), 90(5), 90(5AA), 90(3A), 90(4), 90(6), 99J, 99K(1), 99K(1)(b)(i), 99K(1)(b)(ii), 99K(2), 99K(3), 99L, 99L(1), 99L(2), 99M
Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 s 2(1), item 3 and s 3, Sch 1, items 6 and 7
Legislative Instruments Act 2003 s 6(d)(i), 13, 16, Division 2 of Part 4, Part 5
National Health (Australian Community Pharmacy Rules) Determination 1995
National Health (Australian Community Pharmacy Rules) Determination 2006  s 6, 7, 9, Items 108, 113, 201, 301, 302
National Health (Australian Community Pharmacy Authority Rules) Determination 2007 (No 1)
National Health (Australian Community Pharmacy Authority Rules) Determination 2009 (No 1)

Explanatory Statement to National Health (Australian Community Pharmacy Rules) Determination 2006  Note to [3(a)] of Item 107

Chambers 21^st Century Dictionary, 1999, reprinted 2004, Chambers
Cross on Evidence, Loose Leaf edition, LexisNexis
“The Future of Adversarial Justice”, paper presented to the 17^th AIJA Annual Conference, Adelaide, 7 August 1999

DECISIONS AND REASONS FOR DECISIONS [2011] AATA 724

ADMINISTRATIVE APPEALS TRIBUNAL      )     

)     No. 2011/1299

GENERAL ADMINISTRATIVE DIVISION       )

Re:FABIAN TASCONE

Applicant

And:AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

Respondent

And:PAUL KATSAVOS

Party Joined

And:VIVIEN KATSAVOS

Party Joined

And:SOTTO KOUZAS

Party Joined

DECISION

Tribunal:                   Deputy President S A Forgie

Place:  Melbourne

Date:  19 October 2011

Decision:The Tribunal:

(1)decides that the applicant satisfies the requirements set out in Item 108 of Part 1 of Schedule 1 to the National Health (Australian Community Pharmacy Authority Rules) Determination 2006; and

(2)having noted that it is agreed between the parties that the applicant met the other requirements specified in Rule 9 of that Determination:

(a)sets aside the recommendation made by the Australian Community Pharmacy on 25 March 2011; and

(b)substitutes a recommendation that the applicant be approved under s 90 of the National Health Act 1953 in respect of the premises at Shops 9 and 10, Boardwalk Central Shopping Centre, located on Boardwalk Boulevard, Point Cook, Victoria 3030.

S A Forgie

Deputy President

REASONS FOR DECISION

On 14 February 2011,[1] Mr Fabian Tascone applied to the Secretary of the Department of Health and Ageing (Department) under s 90 of the National Health Act 1953 (Act) for approval to supply pharmaceutical benefits at Shops 9 and 10 at Boardwalk Central Shopping Centre (Boardwalk Central).[2]  Those premises are situated at the corner of Boardwalk Boulevard and Tom Roberts Parade at Point Cook in Victoria.  These are the proposed premises.  Mr Tascone’s application, dated 14 February 2011, was based on his proposal to relocate the Geelong Compounding Pharmacy in Geelong[3] (existing premises) to the proposed premises. In accordance with s 90(3A) of the Act, his application was referred to the Australian Community Pharmacy Authority (Authority). The Authority is required to consider such applications and to recommend to the Secretary whether the applicant should, or should not, be approved.[4]  In doing so, it must comply with the relevant rules determined by the Minister under s 99L of the Act.  The relevant rule is to be found in s 9 of the National Health (Australian Community Pharmacy Rules) Determination 2006 (Determination No. PB 23 of 2006 (PB 23/2006)).  An application of the sort made by Mr Tascone must meet the requirements on Item 108 of Part 1 of Schedule 1 to PB 23/2006, Item 201 of Schedule 2 and Items 301 and 302 of Schedule 3.

1. The Authority initially recommended to the Secretary of the Department of Health and Ageing (Secretary) that Mr Tascone’s application be refused.  It was for review of this recommendation that Mr Tascone applied for review.  Once the evidence had been given and the view of the proposed premises and of Point Cook undertaken, the Authority reversed its position but the third parties, Mr Paul Katsavos, Ms Vivien Katsavos and Mr Sotto Kouzas, continued to oppose Mr Tascone’s application.  At one stage, the Authority raised issues relating to the role it should play in the proceedings.  I have considered those issues in Attachment E to these reasons.

1. The only issue for resolution in the case was whether Mr Tascone met the requirements of Item 108 of Schedule 1 i.e. whether the resident population of the catchment area for the proposed premises is, for most of year, at least 8,000, whether it has grown by at least 5% in each of the two years before the day on which the application was made and the catchment area for the proposed premises contains only one premises approved under the Act. I have decided that Mr Tascone has met the requirements of Item 108. Consequently, I have set aside the Authority’s recommendation made on 25 March 2011 and substituted a recommendation that he be approved under s 90 of the Act in respect of the proposed premises.

THE VIEW

1. The representatives of the parties and I met at Point Cook for a view before any evidence or material was printed.  We met at the site of the proposed premises at the Boardwalk Central on Boardwalk Boulevard where we agreed on the route that the view would follow.  The route that we actually took differed a little and is shown in Attachment A to these reasons.  That Attachment is a compilation of Maps 206, 207 and 208 from the 2008 edition of the Melway Greater Melbourne Street Directory (Melways).[5]  I have described the route that we took in Attachment B.  At Attachment C, I have set out the principles that guided the manner in which the view was conducted and the use that may be made of what is seen on a view.  Attachment D[6] shows the location of the proposed premises[7] and the approved premises together with the Census Collection Districts (CCDs).  CCDs are used by the Australian Bureau of Statistics (ABS) for the purpose of enabling it to collect data.

BACKGROUND

1. In this section of my reasons, I have set out the findings of fact that I have made on matters forming the background to the issue that I must decide.  They were not in dispute between the parties and I have based them on the maps and other material given in evidence as well as on the oral evidence.

Point Cook and its environs

1. Point Cook has been developed over the past 15 years as one of the areas designated as a metropolitan growth area.  Development began in the north and the east and has moved over the years to the south and the west.  Point Cook Road was the focal point of development in the early years.  Residential housing was built to the west and east of it and the Sanctuary Lakes development a little further to the east of it.  Development of the land to the north and south of Sneydes Road came later. 

1. The Princes Freeway effectively forms the northern boundary of Point Cook.  Grassland Drive marks the present urban growth boundary at the southern extremity of Point Cook.  That road is located a short distance from the southern extremity of Boardwalk Boulevard and is shown in an earlier undeveloped state on the map at Attachment A.  Farmland stretches to the south from Grasslands Drive.

1. To the west of Boardwalk Central and the built up area that we viewed and that begins at Hewett Drive (see Attachment A) is Hacketts Road.  That road runs south from the Princes Highway in the north to an indeterminate point to the south of Sneydes Road and to the south of the area we viewed (see Attachment A).  That road represents the western boundary of Point Cook.  To its east is the built up area of Point Cook. 

1. The Werribee Agriculture and Food Technology Precinct (WAFTP) is located to the west of Hacketts Road and beyond the environs of Point Cook.  Three of its boundaries are roughly shaped by Hacketts Road, the Princes Highway, which is, at this point, running in approximately a south easterly direction and an Irrigation Channel to the south.  Sneydes Road travels from approximately east to west through the WAFTP.

1. The eastern extremities of Point Cook extend to include the Sanctuary Lakes master planned residential community as well as, to the north east, the Seabrook locality.  Their eastern boundaries are formed by Skeleton Creek. 

1. I am satisfied that the area designated as Point Cook is largely a built up urban area.  The only areas that remain to be built upon in any significant degree are those located in the south western area of Point Cook bordered by Grasslands Drive in the south, Hacketts Road in the west and Sneydes Road in the north.  This area also lies to the south west of the proposed premises.

1. Access to and from the northern extremities of Point Cook can be had from the Princes Highway by way of Point Cook Road, Forsyth Road (which is the continuation of Boardwalk Boulevard) and Palmers Road.[8]  From its southern extremity to Dunnings Road, Boardwalk Boulevard is also a four lane road but it then becomes a six lane road between Dunnings Road and its junction with the Princes Freeway.[9]  Dunnings Road runs east west between Hacketts Road and Point Cook Road and is a four lane road.  Palmers Road is a two lane road with a proposal that it become a four lane road.[10]  In the west, access to and from Point Cook and through Werribee is by means of Sneydes Road.  It is a two lane road.

The structure and infrastructure of Point Cook

1. Point Cook is contained in the urban growth boundary and forms part of the Wyndham Growth Corridor.  It received its first official recognition as such in 1990 with a Ministerial Direction to that effect.[11]

1. There is no rail transport directly to Point Cook but there is nearby rail transport available in the form of the Werribee/Melbourne and Geelong/Melbourne services.  At that point, the railway line runs roughly alongside the Princes Freeway.  Access to the railway station at Laverton is available to those who travel north along Point Cook Road and then to the north along the Princes Freeway.[12]  Public transport within Point Cook is limited to local bus services. 

1. The Point Cook Town Centre (PCTC) is located at the north eastern corner of the junction of Dunnings Road and Boardwalk Boulevard.  It comprises 158 retail outlets including restaurants, cafés and coffee shops, health services, a department store, a liquor store, a supermarket and banks.  Among them is an Asian grocery store called Glory Asian Grocery.  I mention this specifically for the only other Asian grocery store is located at Boardwalk Central.  The Sanctuary Lakes Town Centre (SLTC) is located at the north western corner of the intersection of Point Cook Road and Sanctuary Lakes Boulevard.  It has 43 retail outlets of a similar mix to PCTC although it does not have a department store.[13]

Boardwalk Central

1. The facilities at Boardwalk Central were not in dispute between the parties.  The shopping centre has two distinct parts and each appears in the aerial photograph at Exhibit M.  Both adjoin Boardwalk Boulevard but one part is located on the northern side of the intersection of that road with Tom Roberts Drive and the other on the southern side.  A bus service, the No 416, passes Boardwalk Central when it travels along Boardwalk Boulevard to the PCTC and then to Hoppers Crossing, which lies beyond the Princes Freeway and to the north of Point Cook.[14]

1. The proposed premises are located within that part of the shopping centre on the northern side.  It appears to comprise a single building, runs north south with its eastern boundary facing Boardwalk Boulevard, its southern side facing Tom Roberts Drive and its western side opening onto a car park.  A Supa IGA supermarket occupies the western side of the building and opens onto that car park.  The proposed premises are situated on the eastern side of the building.  A bakery, fish and chip shop, florist, newsagent, pizza shop and noodle shop and juicebar are also situated within the shopping centre.

1. The other part of the Boardwalk Central is located on Boulevard Drive but to the south of Tom Roberts Drive.  An Asian supermarket is located on the corner.  To its south on Boardwalk Boulevard is a Caltex Service Station with a 7 Eleven.  To its west on Tom Roberts Drive is a group of retail premises.  They include two restaurants, a liquor store and a real estate agent.  Sited further back from the Asian supermarket and behind both the group of retail premises and the Caltex Service Station is Jetts Fitness Centre.

The environs of Boardwalk Central

1. Boardwalk Boulevard provides direct access to the Princes Freeway to the north.  To the south of Boardwalk Central lies Sneydes Road, which gives direct access to Werribee to the west and Sanctuary Lakes to the east. 

1. The Point Cook Prep-Year 9 College adjoins the western boundary of the southern part of Boardwalk Central and is located on the southern side of Tom Roberts Drive.  The remainder of the area is largely residential.

Approved premises

1. In Attachment B, I have identified the five approved premises in Point Cook.  In the order in which we passed them on the view, they are:

No.	Pharmacy	Location
(1)	Sneydes Road Pharmacy	Pinnacle Medical Centre, corner Sneydes Road and Boardwalk Boulevard
(2)	Sanctuary Lakes Amcal Pharmacy	Sanctuary Lakes Shopping Centre, corner of Sanctuary Boulevard and Point Cook Road
(3)	Point Cook Pharmacy	Corner of Point Cook Road and Dunnings Road
(4)	Terry White Pharmacy	PCTC
(5)	Select Pharmacy	PCTC

THE LEGISLATION

Background

1. Section 85 of the Act states that benefits will be provided by the Commonwealth in respect of drugs and medicinal preparations to which Part VII of the Act applies.  In broad terms, the drugs and medicinal preparations in respect of which benefits will be provided are those declared by the Minister for Health and Ageing (Minister).[15] The Minister may determine the forms of pharmaceutical benefits with respect to classes of persons.[16]  The Act also sets out matters such as the way in which any special patient contribution is to be made in relation to the supply of a pharmaceutical benefit[17] and the limited charges which an approved pharmacist, medical practitioner or an approved hospital authority may request.[18]

1. Pharmaceutical benefits may be prescribed by a medical practitioner or by a dental practitioner.[19]  A person is not entitled to receive a pharmaceutical benefit unless it is supplied, upon presentation of the medical or dental practitioner’s prescription, by a pharmacist[20] approved under section 90 or by an approved medical practitioner or hospital authority.[21]

1. Agreements between the Pharmacy Guild of Australia (Guild) and the Government have led to the structural reform of the retail pharmacy industry.  The Pharmaceutical Benefits Scheme (PBS) was a particular focus of the reform.  Under that scheme, pharmacists are remunerated for dispensing prescriptions.  As part of the structural reform, new approvals given to pharmacists to supply pharmaceutical benefits were limited and the inefficient pharmacies already in existence were reduced in number.  Reduction of the number of pharmacists was to be achieved by encouraging certain existing pharmacists to close their businesses or to amalgamate with others where there was another approved pharmacist within a reasonable distance.  New approvals would only be granted if certain criteria were met.  

Application for approval

1. Section 90(1) provides that:

   “Subject to this section, the Secretary may, upon application by a pharmacist for approval to supply pharmaceutical benefits at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at those premises.”[22]

In most cases, an application under s 90(1) to become an approved pharmacist has to be referred to the Authority.[23]  Once an application has been referred to the Authority, the Secretary may only grant an approval if the Authority has recommended that it be approved.  A favourable recommendation, however, does not require the Secretary to give approval. 

1. The Secretary’s approval does not relieve a pharmacist from obtaining all of the approvals that he or she must obtain under the law of a State or Territory in order to operate a pharmacy business from the premises.  Indeed, the pharmacist must obtain those approvals before the Secretary may grant approval in respect of particular premises.[24]

Authority’s consideration of application

1. The Authority’s functions are to consider applications made under s 90. It may recommend to the Secretary that an application either be approved or not approved.[25]  If it recommends approval, it may recommend that approval should be given subject to conditions.[26]  In making its recommendations to the Secretary, the Authority is required to comply with relevant guidelines determined by the Minister under section 99L.[27]  The Authority has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.[28]

The 2006 Determination

1. Section 99L(1) provides that the Minister must determine the rules subject to which the Authority is required to make recommendations under s 99K(1). He or she must do so in writing. The determination is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (AI Act).[29]  Over the years, the Minister has made various determinations setting out various guidelines.  The guidelines that are relevant to the Authority’s decision are those made in the National Health (Australian Community Pharmacy Authority Rules) Determination 2006, which is known as Determination No. PB 23 of 2006 (PB 23/2006).  They came into operation on 1 July 2006.[30]  They have since been amended by the National Health (Australian Community Pharmacy Authority Rules) Determination 2007 (No 1) (PB 30/2007) and the National Health (Australian Community Pharmacy Authority Rules) Determination 2009 (No 1) (PB 14/2009).  I will refer to PB 23/2006 as amended in 2007 and 2009 as the 2006 Determination.

1. The Authority must recommend that an applicant be approved under s 90 of the Act in respect of particular premises if the relevant criteria in s 9 of PB 23/2006 are satisfied. Applications are divided into two types. The first type comprises those applications that involve the cancellation of an approval in respect of existing approved premises. If approved, the application leads to no increase in the number of approved premises. The second type comprises applications that do not involve the cancellation of an existing approval. They lead to an increase in the overall number of approved premises.

1. Mr Tascone’s application involves the cancellation of an approval that is in force in respect of approved premises.  Therefore, the relevant criteria in s 9 are those in s 9(a).  They are:

   “(i)      the application states that it is of a kind mentioned in column 2 of an item of Part 1 of Schedule 1; and

   (ii)the requirements set out in column 3 of that item are met; and

   (iii)the requirements set out in Schedule 2 and Part 1 of Schedule 3 are met; and

   (iv)for an application described in column 2 of an item of Part 2 of Schedule 3 - the requirement set out in column 3 of that item is met; …”

1. In this case, the application is of the kind mentioned in Item 108 of Part 1 of Schedule 1 being a “Relocation to urban locality (additional pharmacy)”.  The requirements set out in column 3 of Item 108 are:

   “1.      The proposed premises are not in a rural locality.

   2. The proposed premises are at least 500 m, in a straight line, from the nearest approved premises.

   3. The Authority is satisfied that:

   (a)the resident population of the catchment area for the proposed premises:

   (i)is, for most of the year, at least 8 000; and

   (ii)has grown by at least 5% in each of the 2 years before the day on which the application was made; and

   (b)the catchment area for the proposed premises contains only 1 approved premises.”

1. Schedule 2 of the 2006 Determination sets out the General Requirements of which the Authority must be satisfied.  They relate to matters such as the applicant’s right to occupy the proposed premises, the accessibility of those premises by the public and the ability of the applicant to begin operating a pharmacy at the proposed premises within six months of the Authority’s making a recommendation in respect of the application.  Part 1 of Schedule 3 sets out the requirements for all applications involving the cancellation of an existing approval.  They relate to administrative matters.           

The time at which I must review the decision

1. Relying on the judgment of the majority of the High Court in Shi v Migration Agents’ Registration Authority[31] (Shi), Mr Dillon, representing the Authority, submitted that I must review the Authority’s decision having regard to the facts as they exist at the time of my decision.  As I said in Re Lobo and Department of Immigration and Citizenship,[32] since Shi the task of the Tribunal is this:

   “(1)     the decision that the Tribunal must review is determined by reference to the statutory provisions conferring jurisdiction on it;

   (2)the Tribunal will address the same issues or questions as those addressed by the original decision-maker;

   (3)unless there is a temporal element in the legislation requiring a contrary conclusion, the Tribunal reviews a decision as at the date it conducts that review and reaches its own decision;

   (4)the Tribunal may have regard to evidence on issues and matters up to the date of its decision on review; and

   (5)the task of the Tribunal:

   (a)is to reach a decision that is the correct or preferable decision i.e. the decision that is correct according to the law and on the evidence and, where more than one decision meets that description, the decision that is preferable having regard to the limits imposed by the legislation under which the decision is made and the facts of the case; and

   (b)is not to decide whether the decision under review is itself the correct or preferable decision.”[33]

1. The relevant provisions of the Act and of the 2006 Determination do not direct me to follow any different path.  Section 99K provides that the Authority’s, and so my, function is to make a recommendation whether an applicant should be approved.  In making that decision, the Authority must be satisfied that the applicant meets the criteria in the 2006 Determination.  Sections 9 and 10, which set out when the Authority must, and must not, recommend the approval of an applicant, are expressed in the present tense.  Although reference is made in some Items to changes that have happened over time – as in the case of population growth in the catchment area[34] – there is nothing that links the rules that must be met with a time in the past.  Compliance is clearly intended to be assessed from time to time until the application is finally determined on its merits.  This is consistent with the approach taken in Shi.  Illustrations of that approach are found in the authorities[35] that preceded Shi and reached a similar conclusion in relation to what were then broadly characterised as entitlement decisions.

CATCHMENT AREA

Previous authorities

1. The first task is to identify the catchment area referred to in Item 108.  The parties referred to my previous decision in Re Hargreaves and Australian Community Pharmacy Authority[36] (Hargreaves) and that of Deputy President Hack SC in Re Dunsdon and Australian Community Pharmacy[37] (Dunsdon).  We both considered the meaning of the expression “catchment area” in the context of the predecessor to the Determination which was PB 6 of 1995 (1995 Determination) and I will begin with Dunsdon. 

1. In Dunsdon Deputy President Hack referred to Hargreaves and to earlier decisions of Senior Member McCabe; first in Re Elkhishin and Australian Community Pharmacy Authority[38] (Elkishin) and then in Re Newman and Australian Community Pharmacy Authority[39] (Newman).  Although it is a lengthy passage, I think that the fairest representation of what he said is to reproduce it in its entirety.  I have omitted the citations and have marked those omissions with ellipses:

   “8.      The expression ‘the catchment area’ is not defined but has been the subject of much discussion in cases in the Tribunal.  The starting point is generally the decision in Re Hargraves [sic] and Australian Community Pharmacy Authority. … In that case Deputy President Forgie noted that ‘the catchment area serviced or to be serviced by a pharmacy is the area populated by those people who may be serviced by the pharmacy.’ … The Deputy President went on to conclude that the catchment area was ‘that area from which people may flow or gravitate’.[40]  The Deputy President explained the matter thus:

   ‘In determining [the catchment] area, the actual choices which people will make are not relevant.  What is relevant in identifying the catchment area are many matters which people consider relevant in making their choice as to the area in which they will available themselves of a particular service.  It is all a matter of degree.  It seems to me that considerations of price and substitutability of other goods are too peculiar to each individual to be relevant in determining a catchment area which is concerned with people who may use the pharmacy rather than with those who will.  Considerations of distances and the existence of other attractions in the area are more broadly based considerations and do not seem to me to be relevant in determining the catchment area.  They are features which could either encourage or discourage people from travelling to that pharmacy.  Other features which would tend to do the same would include the distribution of the population in the area, people’s ease of access to Walloon, geographical features of the area and other services and attractions located in the area.  The existence of other pharmacies in the general area is not relevant in itself for that is more associated with the consumer’s choice, with competition and with a market than with a catchment area.’[41]

   9.        The word ‘gravitate’, as Senior Member McCabe observed recently …, has become a feature of the jurisprudence in applications of this nature.  But, as the Senior Member said in that case, the implication within the word of inexorable forces, akin to gravity,

   ‘may not do enough to focus attention on the choices that are practically open to the residents of a particular area who consume pharmaceutical benefits.’ …

   10.      For that reason Senior Member McCabe, in his earlier decision in Re Elkhishin and Australian Community Pharmacy Authority …, considered that the question posed was ‘whether the ordinary resident of an area would regard a particular pharmacy as a reasonable and practical option in all of the circumstances’. … In Re Newman, the Senior Member expanded upon the matter, saying:

   ‘If my comments in Elkhishin are thought to require an investigation into the idiosyncratic preferences of individuals, I would say at once that was not my intent.  I think the extract I have reproduced in these reasons makes it clear that the decision-maker should have regard to evidence about the area and its occupants that might shed light on whether the residents were likely to regard the proposed pharmacy as a reasonable and practical option, so that they could be expected to gravitate towards it.  Evidence about the size and distribution of the people and traffic networks and other physical features of the area may well be relevant.  But the decision-maker might also derive some assistance in particular cases from the results of surveys of residents and other information that might also be gathered for the purpose of defining a market.’ …

   11.      There is, I suspect, only a semantic difference between the question as posed in Re Hargraves [sic] and the question as posed in Re Elkhishin.  But I consider that, to pose the question by reference to ‘a reasonable and practical option’, maintains the focus of attention upon the core question – ‘what is the catchment area?’  The enquiry, when posed in that way, excludes idiosyncratic behaviour and poses an objective test.  It seems to me, with respect, to be a preferable way of considering what a catchment area of a pharmacy, or a proposed pharmacy, might be.  That is so because a catchment area, in the present context, must mean the area from which pharmacy users, either actual or potential, come, or will come, to a pharmacy, and they will come to a pharmacy if doing so is a reasonable and practical option. ”[42]

General comments

37.I will begin my consideration of Dunsdon with one or two general comments.  The first is that the expression “catchment area” is a term used in Item 113 of the 2006 Determination, with which Deputy President Hack was concerned in Dunsdon, and Item 108, with which I am concerned.  It is a provision whose interpretation does not begin with my consideration in Hargreaves but with the 2006 Determination itself.  The words and their meaning must be interpreted as if they had been used in legislation enacted by Parliament.

1. This follows from the fact that s 99L provides that a determination, such as the 2006 Determination, is a disallowable instrument for the purposes of

   
   

   s 46A of the AI Act. At the time the Act was passed, s 46A was in operation. Its effect was that ss 48, 49 and 50 of the AI Act applied to the disallowable instrument as if the references in those sections to regulations were references to disallowable instruments. They related more to the making and amendment of regulations and so of disallowable instruments but s 46(1)(a) provided for their interpretation. It provided:

   “Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:

   (a)unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of any Act; …”

1. Sections 46A, 48, 49 and 50 were repealed and s 46 repealed and substituted by the Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (LI Transitional Act) with effect from 1 January 2005.[43] 

1. At the same time, the Legislative Instruments Act 2003 (LI Act) came into operation.  Section 6(d)(i) of that legislation now includes an instrument such as the 2006 Determination made under s 99L in the description of a “legislative instrument”. This is the outcome because the 2006 Determination has been made in accordance with s 99L and follows from the fact that s 99L, which was in force before 1 January 2005, declares it to be a disallowable instrument for the purposes of s 46A of the AI Act.

1. The LI Act requires that the 2006 Determination meet certain drafting standards[44] and that it be registered.[45]  Part 5 of the LI Act provides for Parliamentary scrutiny of legislative instruments.  The way in which a legislative instrument is construed is the subject of s 13 of the LI Act.  Section 13(1) provides:

   “If enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears:

   (a)the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act; and

   (b)expressions used in any legislative instrument so made have the same meaning as in the enabling legislation; and

   (c)any legislative instrument so made is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the rule-maker.”

1. That brings me to my second general comment.  That is that I need to focus on the meaning of “catchment area” as used in Determination 2006.  My own interpretation of that term when it was used in the 1995 Determination may be regarded as a starting point as it was one of the earlier cases.  The interpretation in cases such as Elkishin, Newman and Dunsdon are part of the ongoing process of teasing out the interpretation as different factual circumstances shed different light upon a legislative instrument.  What I want to do in this case is go back to the words of the expression “catchment area” as I did in Hargreaves for I fear that it has been lost in the attention that has been given to my use of the word “gravitate” and the possible lack of attention to the way in which I used the word “flow” or to the factors that I outlined in the four paragraphs preceding [103] that might affect that gravitation or flow.  Only [103] is quoted in Dunsdon and then only in part.  What I also fear has been lost sight of is the fact that the 2006 Determination is a legislative instrument and must be interpreted as a piece of legislation.  The 1995 Determination was no different although its interpretation rather was governed by the AI Act and not by the LI Act.

What is a “catchment area”?

1. The expression “catchment area” is not defined in either the Act or the 2006 Determination.  It is a term that is frequently used in relation to dams and the like but is also a term that has come to refer to have a social meaning.  As the Chambers 21st Century Dictionary defines the term, it is:

   “… 1 the area served by a particular school, hospital, etc, encompassing those people who are expected to make use of the facilities within it.  2 (also drainage basin) the area of land whose rainfall feeds a particular river, lake or reservoir.”[46]

1. Clause 3 of Item 108 refers to the catchment area not for a school or hospital but “… for the proposed premises …” but the ordinary meaning would seem to be applicable to both.  The catchment area for a pharmacy refers to the area encompassing those people who would be expected to make use of them if they were approved under the Act.

How is a catchment area identified?

1. There are several questions that immediately raise themselves for consideration and they do not find any express answers in the 2006 Determination.  The first encompasses a number of subsidiary questions.  It is whether the area encompasses only the people who reside within it or whether it extends to people who work within it, pass through it to another area altogether or travel to it for a particular purpose.  Once I have answered that, how do I assess that area?  Are there tests or formulae that have been used?  Is it based on the local population in the near vicinity of the proposed premises or is regard to be had to more intangible matters such as other facilities, be they shops or services, or other attractions located near the proposed premises, that may draw people to the immediate neighbourhood of the proposed premises?  I will come back to these questions.

1. The second question is whether the area is in any way determined by reference to whether the pharmacist chooses to dispense pharmaceutical benefits only at the proposed premises or from those premises.  If approved, he or she may do both.[47]  If the pharmacist may choose to dispense them from the proposed premises, is regard to be had to the area encompassing those people to whom he or she may choose, for example, to make home deliveries?  I think that the answer to this question lies in Item 108.  It is the catchment area “for the proposed premises” that must be identified and not the catchment area for the pharmacist.  Therefore, the catchment area is not the area over which the pharmacist may roam but the area encompassing those people who would be expected to make use of the proposed premises if they were approved under the Act.

1. The third question concerns the idiosyncratic appeal of particular proposed premises.  Is regard to be had to particular aspects of the proposed premises that might make it more attractive than a pharmacy already operating from approved premises?  I think that the answer must be “no”. Approval under s 90(1) of the Act is concerned with approval to supply pharmaceutical benefits at or from particular premises. It is not concerned with whether the pharmacy business operated from those premises is a viable business or whether it offers a range of goods or services that are sought after and not supplied elsewhere. It is not concerned with the physical circumstances in which pharmaceutical benefits are dispensed provided they comply with relevant State and Territory laws. Pharmaceutical benefits do not change their essential character whether they are dispensed at or from premises at Coober Pedy, Mosman or Point Cook or at or from one premises or another at Point Cook. As it is those benefits that are regulated by the approval process, the physical attributes of the proposed premises and the nature of the broader business that the pharmacist may choose to conduct at the premises are not relevant considerations.

Looking to the 2006 Determination for guidance

1. These are questions of the sort that I grappled with in Hargreaves in relation to the 1995 Determination and that no doubt were considered in Elkishin, Newman and Dunsdon.  In 1995, the definition in Chambers, to which I have referred, was yet to be published.  I was left to answer them by reference to analogies of water (and so considered the concept of a “catchment area” by reference to analogies of the flow of water) and of attraction (and so also considered the concept by reference what attraction would cause people to be drawn to the proposed premises and so gravitate[48] towards it).  Elkishin, Newman and Dunsdon have chosen to answer them by reference to what is “a reasonable and practical option” on the basis that it “… maintains the focus of attention upon the core questions – ‘what is the catchment area?’…”.[49] 

1. I have looked to the 2006 Determination to see whether I can gain any guidance.  When I do that, I see that Part 1 of Schedule 1 categorises applications involving cancellation of an existing approval into 12 categories.  They are categorised according to the locations to which relocation is sought.[50]  The criteria specified for each vary.  The 12 categories appear to fall into three broad sub categories.  Applications in the first sub category are those coming within Items 101 to 106.  The criteria established in relation to them are focused on maintaining a service within the area in which the existing approved premises operated[51] or, in the case of a long distance relocation dealt with in Item 106, with ensuring that the proposed premises are a certain distance from the nearest approved premises. 

1. The second sub category comprises Item 108, with which I am concerned and which concerns an urban locality, and Item 107, which is concerned with an application to relocate to a rural locality.  The criteria for each application appear to be framed in terms that ensure that the proposed premises, if approved, will service a minimum number of persons identified by reference to the particular features of the place in which the proposed premises are located.  They do it by reference to the catchment area of the proposed premises and certain features of that catchment area.  I will return to this sub category.

1. The third sub category comprises Items 109 to 112.  The criteria for each are framed in terms of the features of the particular location of the proposed premises.  The criteria for Item 111, for example, are framed in terms of the minimum number of beds in a private hospital and the absence of any approved premises in that hospital.  Item 112 identifies the number of full-time prescribing doctors in the case of a large medical centre and the opening hours of the proposed premises as well as the location of the proposed premises in relation to approved premises in the area of the large medical centre.  No reference is made to catchment areas.

1. The Items concerned with small[52] and large shopping centres[53] also fall within this third sub-category.  For the most part, the criteria are framed in terms of the features of the location.  In the case of a small shopping centre dealt with in Item 109, the criteria of note in this context are that the proposed premises are at least 500 metres in a straight line from the nearest approved premises and that there are no approved premises in the shopping centre.[54]  Apart from the omission of any reference to approved premises outside the centre, the same approach is taken in relation to a large shopping centre.  Depending on the size of the large shopping centre, the single criterion is that there are either no approved premises or only one or two approved premises in the shopping centre.  No reference is made to a catchment area in relation to the proposed premises or to the size of the catchment area or the number of prescribing medical practitioners or persons within it.[55] 

1. The approach taken in the 2006 Determination to the first and third sub categories throws light on that taken to the second comprising Items 107 and 108.  Apart from Item 106, that taken in relation to the first sub category indicates that the Authority is prepared to allow pharmacists flexibility to expand or contract their businesses and to relocate within the area in which they have previously supplied pharmaceutical benefits.  Item 106 is a little different in that it applies to long distance relocation and so goes beyond the bounds of flexibility and adjustment within the local area.  It is more concerned with the provision of a service regardless of the number of persons who may use it.  That is apparent from the fact that its criteria relate only to the distance from approved premises. 

1. The third sub category is concerned with applications for relocation to proposed premises in areas that are almost, but not necessarily, closed environments separate from the area or region in which they are located.  Pharmaceutical benefits are supplied to those within that closed environment or that come to that closed environment be it a hospital, large medical centre or shopping centre. 

1. Although they do not require regard to be had to a catchment area in relation to proposed premises, sub categories one and three are instructive.  They are instructive in that they show that the Authority has tried to ensure that pharmacists have sufficient flexibility to maintain and adjust their businesses as they see fit while ensuring that there are an adequate, but no more than an adequate, number of approved premises from which pharmaceutical benefits may be supplied to meet the needs of the Australian community.

“Residents … likely to regard the proposed pharmacy as a reasonable and practical option”: is it the proper interpretation of “catchment area” or one means of identifying the catchment area?

1. It is with the implicit objects of the 2006 Determination in mind that I return to the views expressed by Senior Member McCabe and Deputy President Hack that identification of the catchment area is achieved by reference to the area whose “… residents were likely to regard the proposed pharmacy as a reasonable and practical option”. 

1. It seems to me that identification of what is “a reasonable and practical option” may bring with it its own inherent practical difficulties in interpretation and application.  First, identifying what is reasonable and practical for one person may well not be reasonable and practical for another given their different needs and demands on their time.  At one level, it may be reasonable and practical for one person to go to a pharmacy situated within walking distance or only a short drive from home.  For another, that may not be reasonable and practical if the pharmacy is the only service or shopping facility co-located with or near the pharmacy so that he or she cannot get other jobs while he or she waits for a pharmaceutical benefit to be filled or before or after the visit to the pharmacy.  Bypassing that pharmacy and going to a more distant pharmacy may be the reasonable and practical option.  In short, what is reasonable and practical to one is not always reasonable and practical to another and what is reasonable and practical today for one may not be that way tomorrow when there are more competing demands on his or her time.

1. The second difficulty that I have with the identification of the catchment area by reference to what is reasonable and practical is perhaps another view of the first.  The identification runs the risk of identifying only part of the area encompassing those people who are expected to make use of the facilities, and particularly pharmaceutical benefits supplied at or from the proposed premises, within it.  It will pay no regard to those who may be attracted to, and so travel to, proposed premises by reason of the facilities and attractions in the neighbourhood and so who may travel past other premises offering the same services and at which those who are reasonable and practical and want only might be expected to stop.  Their behaviour may have nothing to do with what is reasonable and practical in the sense of wanting to multi-task and wanting to achieve the most tasks in the shortest time.  It may simply be a reflection of wanting to have a different shopping experience, to have the opportunity to compare similar products in different stores or to combine their shopping with, for example, a trip to the cinema, a meal at a restaurant, taking the children to see entertainment in the school holidays or filling the car at the service station.  Their choices may be a reflection of their wanting to go to a shopping centre that has clean toilets and rooms where they feel comfortable changing a baby.  They may have nothing to do with shopping at all but be influenced by the fact that proposed premises are close to a day care facility or a school or a centre of major employment or that it is more attractive than another. 

1. Having regard to the more nebulous, and perhaps even ephemeral, elements that attract people to certain places is not to engage in a subjective test or to have regard to idiosyncratic behaviour in order to identify a catchment area.  Rather, I would suggest, it is to recognise that there are many bases on which people choose to act in certain ways.  What is reasonable and practical is one basis but it is only one.  If it were the only one basis, there would be no need to shopping centres, clusters of shops, individual shops or locations to make any effort to make themselves different from any other in order to “attract” customers.  There would be no need because its catchment area would always be made up of those who “attract” customers who find it a “reasonable and practical” proposition to use it and no others.  The 2006 Determination itself recognises that a characteristic of a “catchment area” becomes irrelevant when a small or large shopping centre is the location of proposed premises.  They become their own environment that is neither defined nor limited by the environs in which they are placed.  Although on a much smaller scale, the same is true of hospitals and the like and the 2006 Determination again omits any reference to a catchment area.

1. If the Authority is to achieve what would seem to be its object – to ensure that there are an adequate, but no more than an adequate, number of approved premises from which pharmaceutical benefits may be supplied to meet the needs of the Australian community – it seems to me that I must attempt to recognise all the bases that would lead to people using the proposed premises for the supply of pharmaceutical benefits.  Only in that way can I identify the area encompassing those people who would be expected to make use of the proposed premises if they were approved under the Act and so the catchment area. 

1. Some support for this approach can be found in Items 109 and 110 relating to small and large shopping centres respectively.  Shopping centres of the sort defined in the 2006 Determination[56] are conglomerate entities operating at higher levels in the retail chain than smaller groups of commercial premises in urban localities of the sort contemplated by Item 108 of the 2006 Determination.  Given their size and makeup in terms of the significant number of commercial enterprises they incorporate, it might be expected that they would attract a broader range of persons for a broader range of reasons from a broader area than those who would be attracted to an urban locality that does not come within the description of either a small or large shopping centre.  The broader attraction would make the identification of a catchment area an unrealistic concept in relation to shopping centres of the sort described in Items 109 and 110 but the very reason why it would be irrelevant in that context is the reason why it would not be an irrelevant concept in identifying a catchment area for an urban locality.  It is one way in which those who might be expected to make use of the proposed premises, if approved, may be identified.  

1. In taking this wider approach, I find myself in disagreement with Deputy President Hack and Senior Member McCabe.  Whether or not our differing approaches make any difference at all in any particular case depends, of course, on the evidence that is presented.  In the absence of evidence, there can be no findings of fact and merely conjecture.

Looking to the Explanatory Statement to the 2006 Determination

1. I have reached this interpretation of the words “catchment area” having regard to their ordinary meanings and to their context being that of Item 108 in particular and the 2006 Determination in general.  I have also had regard to the purpose of the PBS and the approval of premises at or from which pharmaceutical benefits are supplied.  I have now turned to the Explanatory Statement with s 15AB of the AI Act in mind for it applies equally to a legislative instrument such as the 2006 Determination as to the Act.[57]  In particular, I refer to s 15AB(1)(a), which provides that:

   “Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

   (a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

   (b)  …”

1. The qualification in s 15AB(3) provides:

   “In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:

   (a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and

   (b)  the need to avoid prolonging legal or other proceedings without compensating advantage.”

1. The Explanatory Statement issued by the Minister with the 2006 Determination contains the following passage relating to a catchment area:

   “Note: catchment areas

   In considering a catchment area, the Authority must be satisfied that the catchment area meets the relevant requirements when it considers the application, not that it will or may meet the requirements at a future time.

   The catchment area of a pharmacy is generally considered to be one in which the population would naturally and reasonably gravitate toward the pharmacy.  In considering a catchment area, the Authority will take account of matters such as traffic networks and natural barriers.  It will also consider other services or attractions in an area which may influence the flow of the population (e.g. people may be likely to travel further to a shopping centre for their shopping needs rather than to a single corner store that might be closer).

   In areas where there is one or more existing pharmacies, the catchment area of a proposed pharmacy is likely to overlap, to some degree, with those of the existing pharmacies.”[58] 

1. This statement seems to me to support my interpretation of the expression “catchment area” as referring to the area encompassing those people who would be expected to make use of the proposed premises if those premises were approved under the Act.  It is not an area that is limited to “Residents … likely to regard the proposed pharmacy as a reasonable and practical option”.  It extends to all who would be expected to make use of them.  Those people are identified by a range of means that may include those of the sort discussed in the Explanatory Statement and to which I have referred above.

THE EVIDENCE

General comments

1. Although the nature of the evidence will differ from case to case, evidence may be available at two levels.  At the broader level, it might relate to matters such as the location of the proposed premises, the services and facilities in its immediate or near environs, its position or otherwise to capture passing foot or vehicular traffic passing from one destination to another, the existing road network and the effect that has on the flow of traffic in relation to the proposed premises and ease of accessibility of those premises.  At the narrower or more specific level, it might be available in the form of surveys of people living in or about the relevant area as to their shopping habits or in records kept by commercial premises co-located or near the proposed premises of the postcodes of those who frequent them.  The figures from sources such as that might be extrapolated to get an indication of the area or areas from which those who could be expected to use the proposed premises are drawn.  It would not necessarily follow that those areas would be included in the catchment area for the proposed premises.  It would simply be a part of the evidence.

1. Once the catchment area has been identified, the population of that area must be determined.  What evidence is appropriate to enable this to be done was a subject of some controversy at the hearing.  At the hearing, evidence was given of the results of Demographic or social factors of those living in the area that is identified as the catchment area would presumably be relevant if the catchment area were being identified for the purposes of ensuring that the proposed premises will be commercially viable.  Neither commercial viability nor socio-economic characteristics are relevant criteria for the purposes of Item 108.  Socio-economic characteristics are irrelevant because the Authority has framed the relevant criterion only in terms of the number of people in the catchment.  Demographic issues remain relevant for Item 108 requires that the population of the catchment area be, for most of the year, at least 8,000 persons and that the population has grown by at least 5% in each of the two years preceding the day on which the application was made.

Does any party carry an evidentiary burden of proof?

1. This was not a matter that was raised by the parties but it arises out of the reasons for decision of Senior Member Cunningham in Re Neelabindu Pty Ltd and Australian Community Pharmacy Authority.[59]  She said that:

   “         Mr Dillon further contended that it is the applicant who bears the evidentiary burden of satisfying compliance on the balance of probabilities.  The tribunal accepts this proposition which is consistent with the approach formulated by Deputy President Forgie in Hargreaves at [92].”[60]

1. While it is true that I referred in Hargreaves to an applicant’s carrying an evidentiary burden “as a matter of practicality”, I would not want it thought that I was then, or am now, of the view that an applicant has any burden at all.  At [89] to [92], I considered whether any party carried a burden in proceedings for review of a decision of the Authority.  I did so in light of the principles in McDonald v Director-General of Social Security[61] and in light of the particular provisions of the 1995 Determination.  Although there are differences in wording and of criteria relating to matters such as distances from approved premises, there is only one major difference between the 1995 Determination and the 2006 Determination.  That is that the latter no longer requires the Authority to be “… satisfied that that there is a definite community need for pharmaceutical services in the area in which those premises are situated”.[62]  The Authority must continue to be satisfied of the criteria in [3] of Item 108.  They relate to the catchment area and its features.  Although not expressed in terms of satisfaction, factual matters related to the location of the proposed premises and their juxtaposition to approved premises are equally matters of which the Authority must be satisfied. 

1. For the reasons that I gave in Hargreaves and which I adopt, I find that no party carries a burden of proof.  An applicant seeking approval of proposed premises would be well advised to lodge or produce as much relevant material as possible in order to support his or her application.  He or she cannot rely on the Authority or any joined party to do so and the Tribunal is unlikely to use any of its inquisitorial powers to do so.  This was explained by Merkel J in VHAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[63]

The witnesses

1. Mr Robert Milner is an urban and regional strategic and statutory planner, who has had a close association with the development of Point Cook since 1999.  At the time, he worked with what is now known as CPG Australia Pty Ltd and which is one of the initial advisers on the development of Sanctuary Lakes.  Until this year, he had held the positions of General Manager, Senior Principal and Adjunct Senior Planning Counsel with that company.  Previously, he has held positions in local government and private enterprise and has provided strategic advice to multi-disciplinary policy and strategy-based projects for public sector clients.  He is now a Director of 10 Consulting Group Pty Ltd. 

1. Mr Tony Dimasi is the Managing Director, Strategy and Analytics, with Pitney Bowes Business Insight.  He taught economics and statistical methods at the University of Melbourne for three years before commencing employment in 1982 in the field of activity centre analysis and related economic research.  Since then, he has been engaged in independent research on behalf of retailers, shopping centre owners and managers, property developers and public authorities regarding supply and demand as well as customer behaviour, motivation and preferences with regard to shopping and activity centre uses.  His research has been conducted throughout Australia and New Zealand.  The projects in relation to which his research and analysis has been sought have included properties in the CBD of various cities, super regional, regional and sub-regional centres, district and neighbourhood centres, homemaker retail facilities, freestanding stores, all forms of retail outlets and commercial and industrial precincts.  For the last 15 years, he has undertaken work involving the activity sites in Point Cook.  He started with Sanctuary Lakes 15 years ago and prepared an economic impact report in relation to its recent expansion.  He has worked on Boardwalk Central and the Innisfail Centre as well as projects in the northern area of Point Cook.

The structural planning of Point Cook

1. Mr Milner said that Mr Point Cook has been planned on the basis that its residential and business communities are served by activity centres established in various locations throughout it.  Activity centres comprise a mix of shops and other retail services and that mix may vary from place to place.  The sizes of the activity centres also vary with some being higher order centres and others being more localised and specialised centres.  The latter support those higher order centres.  The principles that underpin planning of this sort were explained by Mr Milner:

   “A feature of the latest generation of activity centres is that they are more than a collection of shops.  The structure planning that underpins and provides the framework for the development of these new suburbs seeks to optimise the synergies between different land uses and enhance convenience for users and sustainability for the community by clustering activities that gain advantage from being located proximate to each other.  This reduces the number of trips … and the dependence on fossil fuels.  Thus it will be noted that adjacent to the activity centres in Point Cook one or more schools is integrate into the overall design of the centre.”[64]

1. In this case, both PCTC and SLSC are regarded as higher order, or major, shopping centres. 

Factors influencing those who may use the proposed premises at Boardwalk Central

1. In Mr Milne’s opinion, CCDs numbered 212730 (730), 2120731 (731) and 2120732 (732) as well as the portion of CCD 2120708 (708) located to the west of CCD 2120724 (724).[65]  In his reports and oral evidence, Mr Milner indicated several factors that he saw as relevant in identifying the catchment area for the proposed premises.  In summary, they are:

   (1)Boardwalk Central, and so the proposed premises, are located on Boardwalk Boulevard which is the principal collector road serving the western part of Point Cook. 

   (a)A “principal collector road” is a road that carries volumes of traffic in the order of 3,000 to 7,000 vehicles each day.  It provides access to and from places and streets in a neighbourhood, connects neighbourhoods and provides access through neighbourhoods.

   (b)Boardwalk Boulevard takes traffic to and from Forsyth Road, which is one of three points of access to the Princes Freeway at the northern boundary of Point Cook.

   (2)Local bus service route No 416 travels along Boardwalk Boulevard and directly past the proposed premises at Boardwalk Central.

   (a)That bus service travels between Hoppers Crossing to the north of the Princes Freeway and passes PCTC as well as residential areas in Point Cook.

   (3)The range of services and facilities at Boardwalk Central represents those that meet the daily needs of those living in the south western quadrant of Point Cook and is readily accessible by them.

   (4)The closer people live to PCTC, the less attractive become the services and facilities available at Boardwalk Central.

   (a)the larger range of services and facilities of PCTC defines and limits the northern and eastern boundaries of the catchment area for Point Cook.

   (b)Boardwalk Central’s catchment area would not extend beyond PCTC.

   (5)The catchment area for Boardwalk Central extends to the area south of Sneydes Road.

   (a)Although there is already an approved premises at the corner of Sneydes Road and Boardwalk Boulevard, the catchment area for Boardwalk Central would extend beyond the Sneydes Road Pharmacy because those approved premises would potentially service only those who attend the Pinnacle Medical Centre or the hotel and club located nearby. 

   (b)Boardwalk Central offers a greater variety of services and facilities required on a regular daily or weekly basis than does the Sneydes Road Pharmacy.

   (c)People are more likely to combine a trip to use the other services offered at Boardwalk Central, with picking up children at the neighbouring school or simply as part of the journey along Boardwalk Boulevard with a trip to the proposed premises than they are likely to go to or stop at the approved premises at Sneydes Road.

   (6)The way in which Point Cook was developed over the past 15 years has established general patterns of movement of people around the area.

   (a)Point Cook Road initially and later Boardwalk Boulevard and its extension as Forsyth Road provided what were the only two access points to the Princes Freeway for many years.

   (b)There was no access to the Princes Freeway by way of Sneydes Road, which continues to provide access to Werribee.

   (c)The extension of Palmers Road has provided a third means of access to the Princes Freeway at its northern boundary.  This has reinforced the tendency of people to move through Point Cook in a north-south pattern of movement.

   (d)The development of PCTC as a higher order shopping centre and in addition to that already existing at the SLSC also encouraged the tendency to travel to the north of Point Cook for it is located on Dunnings Road in the northern region of Point Cook.

   (7)Boardwalk Central is not located within the natural patterns of movement for people living near Point Cook Road in the east or north of Dunnings Road.

1. In his report and oral evidence, Mr Dimasi concluded that the catchment area for the proposed premises extends to and includes the area from which a person could drive to those premises within five minutes.  In summary, the factors he regarded as relevant in identifying the catchment area for the proposed premises are:

   (1)Boardwalk Central is located adjacent to the Boardwalk Boulevard which is a north-south arterial route through the Point Cook residential area and which provides direct access to the Princes Freeway in the north.

   (2)The services and facilities at Boardwalk Central and, in particular,:

   (a)The Supa IGA supermarket, which is the only IGA branded supermarket and the only large independent supermarket in the Point Cook area.

   (b)The range of other shops and services including a bakery, various cafés, a pizza shop, newsagency, fish and chip shop, florist, juicebar, noodle shop and liquor store together with a Jetts fitness centre.

   (3)The pattern of urban development in the surrounding area and the quality of access to the proposed premises from the surrounding residential areas.

   (4)It is relevant to consider those who would find it a fairly simple and practical option to visit the proposed premises.

   (a)Those would include those who can drive to the proposed premises within a time no greater than five minutes.

1. A fundamental difference between Mr Milner and Mr Dimasi lay in the fact that Mr Milner regarded the catchment area for the prescribed premises as much more localised than did Mr Dimasi.  In Mr Dimasi’s view, Mr Milner’s localised approach was inconsistent with his including CCD 730 within the catchment area.  CCD 730 adjoins 726 and there are already two approved premises on the southern border of CCD 726.  Mr Milner rejected that criticism saying that up to a point immediately south of Dunnings Road and in the area of CCD 730, it was as easy to travel to the proposed premises as to cross Dunnings Road to the two approved premises at PCTC in CCD 726.

1. Mr Milner took the view that Mr Dimasi’s broader view was too broad.  To include CCDs to the north of Dunnings Road was, in Mr Milner’s view, to go too far.  Apart from travelling to Werribee, there was no “attractor” to the south of Dunnings Road that would encourage people who lived to the north of that road to travel to the proposed premises.  Even then, they can gain access to Werribee and Hoppers Crossing by entering the Princes Freeway at an access point in the north.  That this is so is shown by the fact that, historically, patterns of travel have been from south to north to the Princes Freeway.  There is no access to the Princes Freeway from Sneydes Road.  People from the southern regions of Point Cook would travel to Dunnings Road and gain access to the Princes Freeway from Point Cook Road.  Mr Milner did accept in oral evidence that some people would travel past Boardwalk Central in order to get to Werribee or to get to a railway station but questioned whether it would be a significant number. 

1. In Mr Dimasi’s opinion, people will be increasingly happy to travel to Boardwalk Boulevard and then Forsyth Road in order to gain access to the Princes Freeway.  This will happen more so as the southern areas of Point Cook are developed.  The Supa IGA is an attractor as is the Asian Supermarket at Boardwalk Central and the fact that it is on a bus route.  SLSC is a more rounded shopping centre but is looking a little tired. 

1. Mr Milner saw Dunnings Road as a clear boundary of the catchment area.  The PCTC offers a main street shopping experience.  I noted on the view that the PCTC comprised a number of separate buildings with walkways and small roads in between.  It has a large range of services and so has more “drawing power” than can be offered by Boardwalk Central.  Mr Dimasi rejected the proposition that those living in CCDs 725 and 726 to the north of Dunnings Road would see that road as a “magical marker” that they would not cross in order to go to Boardwalk Central.  Parking is easier to find at Boardwalk Central than at PCTC.  For that reason, another minute or two in travel time may make travelling to Boardwalk Central a worthwhile proposition.

1. In the east of Point Cook, Mr Milner saw a resident of CCD 735 favouring the approved premises located at the SLSC in that CCD.  He failed to see why a person in that CCD would travel over 800 metres to Boardwalk Central when he or she could travel a shorter distance to the SLSC.  The distance between arterial roads in Point Cook measures approximately 1.6 kilometres.  That is the approximate distance between Point Cook Road, where an approved premises is to be found in the SLSC, and Boardwalk Central.  Consistent with the Wyndham City Council’s Planning Scheme, the planning in Point Cook emphasises ease of access to services.  Midway between each pair of arterial roads is a feeder road.  As a consequence, no household is more than 400 metres from a means of ready access be it a feeder road or an arterial road.  Traffic calming reduces the speed of access on all other roads.  The planning policy also requires that each household be no more than 400 metres from a group of convenience shops or, if not convenience shops, a more substantial shopping centre.

1. Mr Dimasi saw Mr Milner’s view as relevant to the eastern part of CCD 735 but not to its western part.  If Mr Milner were correct and the catchment area should be viewed on a very localised basis, Mr Dimasi suggested that its catchment area should not extend beyond Lennon Boulevard, which is a collector road, to the east.  That road enters Sneydes Road and is located approximately half way between Boardwalk Boulevard and Point Cook Road.

1. Mr Milner agreed that CCDs could be divided but thought that identification of a catchment area required more subtlety and sophistication than Mr Dimasi’s division of CCD 735 showed.  CCDs are only lines on a page, he said.

1. CCD 734 provides a small dilemma, in Mr Milner’s opinion.  It adjoins CCDs 731 and 732 and touches CCD 735.  The choice between going to Boardwalk Central and SLSC might be more difficult as the journey would be much the same. 

1. Mr Milner acknowledged that Supa IGA will have some brand loyalty but added that it would not have enough to outstrip those who would choose to shop at Coles and Aldi at PCTC or Woolworths at SLSC.  Aldi appeals to the price conscious consumer and, in Mr Milner’s opinion, Supa IGA becomes the surrogate Woolworths in its location.  Mr Dimasi did not view Supa IGA in this way.  The Supa IGA at Boardwalk Central occupies some 2,500 square metres.  He saw it as enjoying a lot of “drawing power” if it is well operated and, in those circumstances, as drawing people from all parts of Point Cook. 

1. Mr Milner did not see the school on Tom Roberts Drive as being significant in identifying those who would come to the proposed premises.  He saw the school as serving children who were in walking distance of it provided they did not choose to attend one of the private schools.

Measuring the population of the catchment area

1. In his report, Mr Dimasi set out the way in which he had assessed the population area within the CCDs he had included in the catchment area he had identified for Boardwalk Central:

   “3.7     Table 3.1 attached shows the population levels within each of the CCDs included within the defined catchment area, on an annual basis from 2006 to 2010 (the most recent year for which official data is available).  These data are sourced from the Australian Bureau of Statistics (ABS) which publishes estimates of resident population at a Census Collection District (CCD) on an annual basis (Regional Population Growth Australia, Cat. No. 3218.0).  The boundaries of each of the CCDs listed in Table 3.1 are shown on Map 3.1 previously.

   3.8Also included in Table 3.1 are my estimates for 2011, having regard to growth rates achieved over the previous two years (assuming a growth rate for 2011 for each CCD that is equivalent to the average rate achieved in that CCD over the previous two years) and official data showing the levels of residential dwelling approvals for the subject area.  Residential dwelling approval date, on a CCD basis, are shown for the four most recent completed years in Table 3.2.”[66]

1. Mr Milner also referred to CCDs but did not rely on them or on the growth figures from the ABS in their entirety.  In his view, the ABS figures did not give a fair indication of the growth in the area.  Although not entirely so, the ABS figures are calculated as a “desk top exercise”.  They cannot keep up with the growth and, indeed, those on the ground had not been able to keep up with the design work and other associated work in the development of the southern part of Point Cook in 2008 and 2009.  Much of the property was sold as house and land packages for which there was already a purchaser.  The development did not proceed on a speculative basis. 

1. Mr Milner set out his approach in his first report where he said:

   “I note that the land within the western portion of CD [Collection District] 212708 contains parts of developing residential estates.  Data supplied by the City of Wyndham indicates that, as at 2010, there were a total of 3,911 residential lots in that portion of CD 212708.  At this time, dwellings have been developed on 2,466 of the lots.  Even assuming that the remainder of the 3,911 dwellings have not yet been developed and that only 90% of those which have been developed are occupied, at an average of 3 people per dwelling, a population of at least 6,604 people can be assumed for this area by 2011.

   …

Table 1 – Population Figures for CDs Within the Catchment
Census Population (2006)	Estimated 2011 population
Agreed Catchment[[67]]	2,120,708 (western portion)	< 185 (185 for all of CD)	6,604*
	2,120,730	691	2,121**
	2,120,731	714
	2,120,732	716
Total	Total	<2,306	8,725

* Based on dwelling figures supplied by Wyndham City Council.

** No growth assumed.

Based on the above, even if no growth has occurred within the other CDs (which is unlikely), the rapid growth within the western portion of CD 2,120,708 has ensured that the population of the agreed catchment is above 8,000 people.

I note that the above indicates an average annual population growth rate of at least 39.5% for the catchment.

The rapid growth is not surprising given that it has occurred through the development of new residential areas.

I can reinforce the above statistical analysis with aerial photography and personal experience.”[68]

1. After the conclusion of the first day’s hearing, Mr Milner prepared an assessment of the housing in CCD 708.[69]  Using the aerial photograph of Point Cook taken in April 2011,[70] Mr Milne superimposed the boundary of CCD 708 and counted the completed houses within its border.  A completed house was a house with a roof on it.  That does not mean that it is necessarily habitable but it does indicate that it is about four months away from completion, Mr Milner explained in his oral evidence.  He counted them according to the developer and they totalled 3,160 completed dwellings.[71]  The data from the Wyndham City Council (WCC)[72] was taken in April 2010 and showed 2,446 completed dwellings.  That was a difference of 714 dwellings and represented a monthly increase of 59 completed dwellings per month.  Using that average and taking the April 2010 number of dwellings as a starting point, the number of completed dwellings in December 2010 would have been 2,446 plus (59 x 8 months) or 2,918 dwellings.  Assuming that 10% of the dwellings are vacant and that three people live in each of the dwellings that is not vacant, this would mean that 7,878 people live in those three areas of CCD 708 in December 2010.

1. Mr Milner then looked at this estimate in light of the figures given by the ABS for CCDs 730, 731 and 732.  If he assumed that there had been no growth at all in these figures since the 2006 census, as he had done in his report as is seen above, and added the estimated figure for the relevant part of CCD 708, the number of people would be some 10,099. 

1. Mr Dimasi said that the way in which the ABS calculates the rate of growth depends on a range of factors including the number of income tax returns lodged in the area and approvals for the construction of new dwellings.  In his experience, the figures have been “quite robust”.

1. Both Mr Milner and Mr Dimasi agreed that the growth in CCD 708 had been “enormous” but Mr Dimasi thought that the best guide to it lay in the ABS figures.  To look at anything else was speculative, he said.  Mr Milner rejected the proposition that his reliance on the figures he had obtained from the WCC meant that his calculations were speculative.  To rely on estimates by the ABS was to introduce a fair degree of error.  That error increases as the period between the time at which the base data was collected and the time at which the estimate is made increases.  Mr Dimasi countered Mr Milner’s argument with the proposition that the WCC’s figures must be speculative as well for statistics relating to certificates of occupancy did not equate with their being occupied.  It is not unusual to have a 10% vacancy rate in a housing estate.  That is particularly so if an estate is built on a speculative basis.  The area in CCD 708 has mushroomed but it is unusual for 5,000 people to move into such an area in the space of 18 months.  Mr Milner acknowledged that the current growth rate may not be as great as it has been in previous years and that there may be some vacant houses as people got into financial difficulty.

B.       Courts and tribunals: differences and similarities

1. These canons of judicial behaviour are equally applicable to an external merits review tribunal such as the Tribunal.  It is based on the judicial model[82] so that its members are required “to act judicially, that is to say, with judicial fairness and detachment”.[83]  They are obliged to accord the parties procedural fairness[84] and to comply with their obligations under s 39(1) of the AAT Act to give the parties a reasonable opportunity to present his or her case.  Their tools are much the same and, indeed, their proceedings may often appear to be indistinguishable from those in a court.[85] 

1. For all that, the product they forge with their tools is quite different.  As Mason CJ has said of the courts:

   “Within the adversarial system, despite some statements to the contrary, the function of the courts is not to pursue the truth but to decide on the cases presented by the parties.”[86]

Members of the Tribunal must generally make the decision described as the “correct decision” or, if more than one fits that description, the preferable decision having regard to, and guided by, the provisions of the enactment under which the decision is made.  As explained by Fox J in Ladic v Capital Territory Health Commission:[87]

“... Although in many ways resembling a court of law, and although it often finds it helpful to follow, in general, the course of proceedings in a court of law, it must always be remembered that its role is fundamentally administrative.  Its task is to inquire.  By way of contrast, the task of a court of law is, in general, to decide which of two opposed cases is to be preferred. ...”[88]

1. In carrying out their task, members are:

   “… entitled to be guided by the issues that the parties choose to put before it for its consideration … and is entitled to have regard to the case put …

   An inquisitorial review conducted by the AAT … is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant …”.[89]

1. On its face, this is an obligation without boundaries.  That would certainly appear to be the position from the judgment of the High Court in Applicant VEAL 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[90] when speaking of the Refugee Review Tribunal (RRT):

   “… an independent arbiter charged with deciding an issue joined between adversaries. The Tribunal was required to review a decision of the Executive made under the Act [Migration Act 1958] and for that purpose the Tribunal was bound to make its own inquiries and form its own views upon the claim which the appellant made.  And the Tribunal had to decide whether the appellant was entitled to the visa he claimed.”[91]

1. At a practical level there is a very real boundary for, although the Tribunal has the power to conduct investigations it does not have the resources in terms of an allocation within its monetary or human resources budgets.  Boundaries are also found when any obligation to investigate is viewed in light of the principles of procedural fairness that the Tribunal must follow in carrying out its duty to review decisions on their merits.  These were explained by the High Court in Minister for Immigration and Citizenship v SZIAI[92] (SZIAI).  The majority concluded that “It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law.”[93]  Where a merits review tribunal is under a duty to review:

   “… It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. …”[94]

1. If it were to take this course in a particular case, the Tribunal would be obliged to follow the rules of procedural fairness.  The majority of the High Court in SZIAI was speaking of the obligation of the RRT where the respondent has no representation at the hearing.  Both parties are represented in the Tribunal and it would seem that it could comply with its obligation to enquire and to accord procedural fairness by making the enquiry of both in the presence of each other and leaving it to them, or one of them, to search for any relevant evidence.

C.Principles applying in the courts equally applicable in the Tribunal

1. When they are examined, the differences between the roles of courts and external merits review tribunals and the nature of the decisions they must come to do neither require nor justify the Tribunal’s abandoning the principles developed by the courts in relation to the conduct of a view.  For all their differences, both must act as independent arbiters of the dispute and be seen to do so.

The use that may be made of a view

A.The principles applying in the courts regarding the use that may be made of a view

1. The use that may be made of a view in a court was outlined by the majority of the High Court in Scott v Numurkah Corporation.[95]Omitting their Honours’ citations, the principles governing its use are:

   “… The limits of the use which may be made of a view are well stated by Davidson J in Unsted v Unsted … where he said: ‘Whilst a view is frequently a valuable adjunct to a hearing to enable the truth to be elicited, there are well-recognised limits within which such a procedure must be kept. … In a general form the rule is that a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in evidence … Yet, sometimes, for example, in cases of passing off, or otherwise when what appears to the eye is the ultimate test, the Judge, looking at the exhibits before him or examined by him as if they were exhibits in the case, and also paying attention to the evidence adduced, can apply his own independent judgment notwithstanding what the witnesses have deposed to on the particular point …  It is not permissible, however, for the Judge to gather anything in the nature of extraneous evidence and apply it in the determination of the issues unless the facts are openly ventilated and exposed to the criticism of the parties …  The statement that ‘the rule is that a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence’ is fully supported by authority. …”[96]

B.Principles applying in the courts equally applicable in the Tribunal

1. These principles have been developed with an eye to ensuring that the parties are accorded procedural fairness and that a court decides the case by reference to what is evidence and not by reference to an individual Judge’s perceptions.  They are equally applicable in a merits review tribunal such as this.  The Tribunal’s ultimate decision may not reflect the cases put by either party but it must the correct decision (or one of the correct decisions if a discretion is involved) according to the applicable law and according to the material and evidence before it.  It is a task that requires objective analysis of the law and of the evidentiary material.  There may be some exceptions to this in the Tribunal[97] just as the High Court noted there may be in the courts.  Those exceptions do not arise in this case.  Any perceptions I might have gained during the view have no place in my consideration of the issues in this case.

ATTACHMENT D

PROPOSED AND APPROVED PREMISES AND CCDs

ATTACHMENT E

THE ROLE OF A DECISION-MAKER IN MERITS REVIEW

The role of the Authority in these proceedings

1. At one stage of the proceedings, Mr Dillon proposed that the Authority would adopt the “Hardiman approach”.  This is a reference to the passage from the judgment of the High Court in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman[98] (Hardiman) when it said:

   “         There is one final matter.  Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors’ case for relief and this he did by presenting a substantive argument.  In cases of this kind the usual course is for a tribunal to submit to such order as the court may make.  The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage.  If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted.  The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.”[99]

Mr Dillon later indicated that the Authority had moved away from this approach.  I welcome its move for Hardiman and the principles on which it is based are inapplicable in the context of merits review.  Their place is in the appellate courts where an adversarial approach prevails and not in that of a merits review tribunal where the outcome is intended to achieve the correct decision in law and fact and, if there is more than one such decision, the preferable decision.

1. In Hardiman, the High Court was concerned with the role of the Australian Broadcasting Tribunal (ABT) in an appeal from the decision it had made following an inquiry it had held under the Broadcasting and Television Act 1942 (BT Act) into alleged breaches of that legislation.  The ABT had been required to hold that inquiry under ss 92F(4) and (4A) of the BT Act and was under a duty to investigate all matters.  In the course of its inquiry, Messrs Hardiman and others applied to the High Court for an order nisi for mandamus and prohibition directed to the ABT and its members as well as to certain parties to the ABT’s inquiry.  It was granted and subsequently made absolute when the High Court decided that the ABT had failed to discharge its statutory responsibility in that, by its rulings, it had precluded itself from enquiring into all relevant matters.[100]  In appearing for the ABT and explaining why it was assuming the role of an active party, Mr Hughes QC had submitted that “The application raises important issues about the procedures the Tribunal should follow”[101] and had then, at the request of the Court, simply made his submissions in summary form without elaboration.  Although presented in that form, they strayed a little beyond what the High Court was later to say was, in general, their proper extent if, indeed, it was appropriate to make them at all i.e. the ABT’s powers and procedures.

1. The basis for the High Court’s concerns about the ABT’s appearing as an active party was expressed in terms of the risk that it presents to its impartiality in any subsequent proceedings.  Subsequent proceedings would have ensued in that case as the orders nisi for mandamus and prohibition were made absolute.  The risk to impartiality is just as much a matter for concern when an appeal is lodged from the decision of an administrative tribunal be it the ABT, this Tribunal or any other or when proceedings for judicial review are brought for review of any of its decisions.  Therefore, this Tribunal traditionally does not seek to be made a party to any appeal.  When it or its members are made parties in judicial review proceedings, it enters an appearance but notes that it abides by the decision of the court and takes no further part in the proceedings.  If the matter is remitted to the Tribunal, its impartiality has not been affected by any position it might otherwise have taken in the proceedings.

1. This approach accords with the approach expressed in Hardiman but I would venture to suggest that there is a further reason why it is the approach that should generally be adopted.  Once the Tribunal has made its decision or, if the matter is taken to a court at an earlier stage for judicial review, has made a ruling, the proceedings immediately become adversarial.  It becomes a dispute between those whose interests are affected by the Tribunal’s decision or ruling as to the correctness at law of that decision or ruling.  The Tribunal’s role in this is to supply, as it were, the cause for dispute in the adversarial proceedings that take place in the court.  That is all.

1. The Tribunal’s one opportunity to put its point of view or to defend its decision is not an opportunity that presents itself in those terms.  It is an opportunity that presents itself as an obligation to give reasons for its decision or ruling.  That obligation is a legal obligation but it is, I would suggest, also a moral obligation.  It is a moral obligation owed to the parties to explain what I would call the “what, how and why of what it has done”.  That applies both to the substantive decision that it has made in reviewing the decision and the procedural decisions it has made along the way.  They may be given orally or in writing as the circumstances dictate but they must be given.  The parties engaged in an adversarial contest cannot call the merits review tribunal member to give evidence but are left to glean what they can from the papers.  They should not be left with papers representing no more than a little stubble in a barren field.  Instead, they should be able to find from the reasons, if not golden sheaves of harvested grain, at least enough single grains from which to understand the “what, how and why” of that which has been done. 

1. It is up to the parties to argue whether that is the correct decision and the Tribunal’s role is effectively at an end.  As happened in Hardiman, the courts do not encourage it to have a second bite of the cherry to shore up its position.  Therefore, any submissions that might be made should be limited to the powers and procedures of the Tribunal.[102]

1. A decision under review in the Tribunal is in quite a different position from that of the Tribunal’s decision in the Federal Court.  It is the reason for an applicant’s having applied for review and coming to the Tribunal.  It is the reason why the decision-maker is a party to that application.  It is a starting point and the essential element from which the Tribunal draws its jurisdiction and power to act.[103]  It is to the decision that the Tribunal returns once it has completed any review in order to decide whether it affirms it, varies it, sets it aside and substitutes another decision or remits it, with or without directions or recommendations, to the decision-maker to be decided again.[104]  Between the starting and finishing points, the decision itself generally has no relevance.  The reason for this is found in the nature of the Tribunal’s task which is, as Davies J described it in Jebb v Repatriation Commission,[105] a part of the administrative “continuum”.[106]  Its role in that continuum is, as the majority of the High Court said in Esber v Commonwealth of Australia and Another:[107]

   “… to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision (16).^[[108]] ...”[109]

The general principles were set out in McDonald v Director-General of Social Security[110] to the effect that “… The AAT itself … has taken the view that there is no presumption that the administrator’s decision is correct.  This is clearly the right approach to the matter.”[111] 

1. Once a decision has been reviewed by the Tribunal and an appeal is lodged or judicial review is sought, the essential characteristics of the proceedings undergo a profound change. The matter moves from the Tribunal, whose proceedings may, at times, have the appearance of adversarial proceedings but are not in fact adversarial but administrative,[112] to the Federal Court where they are in fact adversarial. Unlike proceedings in the Federal Court, the decision is not argued over by the parties in the sense of putting conflicting cases to the Tribunal over whether it is beset by legal error either in its making or in the processes leading to its making. Unlike the Federal Court, the Tribunal is not left to choose the view of one party or the other. It must listen to those views but its task is to come to the correct decision at law and on the evidence or material available. It “… is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. ...”.[113]  If there is more than one decision that is correct, it must choose which of those decisions is the preferable decision.[114]  It is bound to form its own view of the matter. 

1. On occasion, the Tribunal may, like the RRT, be “…bound to make its own inquiries and form its own views upon the claim which the appellant made. …”.[115]  The extent to which it is bound to do so will be determined by reference to whether it has failed to review the decision.  As I have said before, it may be found to have done so if it fails “… to make an obvious inquiry about a critical fact, the existence of which is easily ascertained …”.[116]  If it does so, it must act with procedural fairness as required by the common law and comply with the statutory obligation under s 39 of the AAT to give every party to a proceeding:

   “… 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.”

If it does not carry out an inquiry, its failure may be a breach of its duty to review but, as the majority said in Minister for Immigration and Citizenship v SZIAI:

“… It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law. …”[117]

1. Once the nature of the Tribunal’s proceedings is understood, it becomes clear that the role of the decision-maker, be it an individual or an entity such as the Authority, is quite different from that in a court.  A decision-maker’s role is not to defend a decision but to assist the Tribunal to find the correct or preferable decision.  It may assist by lodging relevant material, researching the law and making submissions on both.  This is an invaluable role for, despite its having powers that might enable it to make its own enquiries, practical considerations render them relatively ineffectual powers.[118]  Assisting the Tribunal in this way does not compromise the decision-maker’s impartiality should the decision be remitted to it for both it and the Tribunal remain part of the administrative continuum directed to reaching the correct or preferable decision.  Indeed, it accords with the decision-maker’s duty to “… use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding”.[119]

I certify that the one hundred and thirty eight preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           .......................................................................
  Leah Berardi, Associate

Dates of Hearing  1 and 2 September 2011

Date of Decision  19 October 2011

Counsel for the Applicant             Mr S Burley, SC

Solicitor of the Applicant             Mr H Rotstein and Mr R Pedley

Rotstein Lockwood Reddy

Solicitor for the Respondent         Mr A Dillon and Ms M Allen

Australian Government Solicitor

Counsel for the Joined Parties      Mr J Robinson

Solicitor for the Joined Parties      Ms A Mihulka

Ann Mihulka & Associates

[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 243. 

[2] Melway Greater Melbourne Street Directory, 2011, Map 207, E6

[3] T documents at 182

[4] Act, ss 99K(1) and (3)

[5] Exhibit C

[6] Attachment D is a reduced copy of Exhibit B

[7] If viewed in black and white, the proposed premises are shown as a slightly darker star in CCD 2120708 adjoining CCD 2120731 and just to the south of CCD 2120732.

[8] Exhibit G at 4

[9] Exhibit PJ5; Figure 15

[10] Exhibit PJ5; Figure 15

[11] Point Cook Concept Plan, April 1996, by Wyndham City Council; Exhibits PJ4 and PJ5

[12] Exhibit G at 3

[13] See the breakdown of retail outlets at each of Boardwalk Central, SLSC and PCTC at Exhibit E.

[14] Exhibit F at 11

[15] Act, ss 85(2) and (2A)

[16] Act, s 85A

[17] Act, s 85B

[18] Act, s 87

[19] Act, s 88

[20] Under s 90, a “pharmacist” includes “… a reference to a person who owns, or is about to own, a business for the supply of pharmaceutical benefits at particular premises.”: Act, s 90(6).

[21] Act, s 89

[22] “If, under this section, a pharmacist is granted approval to supply pharmaceutical benefits at particular premises, the pharmacist may also supply pharmaceutical benefits from those premises.”: Act, s 90(5AA).

[23] Act, s 90(3A)

[24] Section 90(4) provides: “Nothing in this section authorizes the Secretary to grant approval to a pharmacist in respect of premises at which a pharmacist is not permitted, under the law of the State or Territory in which the premises are situated, to carry on business.”

[25] Act, ss 99K(1)(b)(i) and (3)

[26] Act, s 99K(1)(b)(ii)

[27] Act, s 99K(2)

[28] Act, s 99M

[29] Act, s 99L(2)

[30] PB 23/2006 at s 2

[31] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147; Kirby, Hayne, Heydon, Crennan and Kiefel JJ

[32] [2010] AATA 583; (2010) 116 ALD 639; 52 AAR 304

[33] [2010] AATA 583; (2010) 116 ALD 639; 52 AAR 304 at [39]; 653-654;319-320

[34] e.g. Item 108 [3(a)(ii)]

[35] Freeman v Secretary, Department of Social Security ([1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255), Re Tiknaz and Director-General of Social Services ((1981) 4 ALN N44), Jebb v Repatriation Commission ([1988] FCA 105; (1988) 80 ALR 329), Re Easton and Repatriation Commission ((1987) 12 ALD 777 ) and Re McGourty and Repatriation Commission ((1988) 9 AAR 87).

[36] [1995] AATA 326; (1995) 41 ALD 147

[37] [2011] AATA 82; (2011) 119 ALD 696

[38] [2008] AATA 1134

[39] [2010] AATA 1055; (2010) 119 ALD 227

[40] [2011] AATA 82; (2011) 119 ALD 696 at [8]; 698 citing Hargreaves [1995] AATA 326; (1995) 41 ALD 147 at [101]; 169

[41] [2011] AATA 82; (2011) 119 ALD 696 at [8]; 698 citing Hargreaves [1995] AATA 326; (1995) 41 ALD 147 at [103]; 170

[42] [2011] AATA 82; (2011) 119 ALD 696 at [9]-[11]; 698-699

[43] LI Transitional Act, s 2(1), item 3 and s 3, Schedule 1, items 6 and 7

[44] LI Act, s 16

[45] LI Act, Part 4, Division 2

[46] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[47] See ss 90(1) and (5) of the Act as now drafted.  When I decided Hargreaves, the substance of the law was similar in this regard but was to be found in s 90(1) alone.  That provision read: “Subject to this section, the Secretary 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.”

[48] “gravitate … 2 to move or be drawn gradually, as if attracted by some force □ gravitated towards a life of crime. …”: Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[49] [2011] AATA 82 at [11] and see the whole of the relevant passage in which it appears at […] above.

[50] The relocations are: “Relocation within shopping centre or private hospital” (Item 101); “Relocation within rural locality” (Item 102); “Expansion or contraction” (Item 103); “Short distance relocation (1 km)) (Item 104); “Short distance relocation (more than 1 km)” (Item 105); “Long distance relocation” (Item 106); “Relocation to rural locality (additional pharmacy)” (Item 107); “Relocation to urban locality (additional pharmacy)” (Item 108); “Relocation to small shopping centre” (Item 109); “Relocation to large shopping centre” (Item 110); “Relocation to private hospital” (Item 111); and “Relocation to large medical centre” (Item 112).

[51] Items 101 to 105

[52] A “small shopping centre” means “… a shopping centre that: (a) has a gross leasable area of at least 5 000 m²; and (b) contains a supermarket that occupies at least 2 500 m²; and (c) contains at least 15 other commercial establishments; and (d) has customer parking facilities.”; 2006 Determination, s 6(1).  A “commercial establishment” is defined in s 7 to mean “… premises: (a) in a shopping centre; and (b) occupied by, or likely to be occupied by: (i) a shop where goods, food or beverages are sold retail; or (ii) a bar, café, restaurant or takeaway; or (iii) a business that provides services to customers.”: 2006 Determination, ss 6(1) and 7(1).  A commercial establishment does not include “…(a) commercial office space; or (b) premises occupied by an accountant, analyst, architect, engineer, lawyer, planner, real estate agent, stockbroker or surveyor; or (c)premises occupied by an insurance company, agent or broker, unless the premises are occupied as a shopfront for an insurance company; or (d) a council office or government or statutory corporation office or shopfront, other than an Australia Post or Australian Broadcasting Corporation shop or a Medicare shopfront; or(e)a library; or (f) a kindergarten or preschool; or (g) a child care centre or child minding facility, unless the centre or facility is regularly available for use by customers of the shopping centre while the customers are at the shopping centre; or (h) a storeroom or storage area; or (i) a temporary selling point; or (j) an automatic teller machine or automatic dispensing machine.”: 2006 Determination, s 7(2).

[53] A “large shopping centre” means “… a shopping centre that: (a) has a gross leasable area of at least 5 000 m²; and (b) contains a supermarket that occupies at least 1 000 m²; and (c) contains at least 30 other commercial establishments; and (d) has customer parking facilities.”; 2006 Determination, s 6(1).

[54] “1. The proposed premises are in a small shopping centre.  2. The proposed premises are at least 500 m, in a straight line, from the nearest approved premises.  3. There are no approved premises in the shopping centre.”: 2006 Determination, Schedule 1, Part 1, Item 110

[55] “1. The proposed premises are in a large shopping centre.  2. There are: (a) for a shopping centre that contains at least 30, but fewer than 100, commercial establishments – no approved premises in the shopping centre; or (b) for a shopping centre that contains at least 100, but fewer than 200, commercial establishments – no more than 1 approved premises in the shopping centre; or (c) for a shopping centre that contains at least 200 commercial establishments – no more than 2 approved premises in the shopping centre.” : PB 23/2006, Schedule 1, Part 1, Item 109

[56] See FN 52 and 53 above

[57] See [40] above

[58] Note to [3(a)] of Item 107

[59] [2009] AATA 532; (2009) 110 ALD 228

[60] [2009] AATA 532; (2009) 110 ALD 228 at [16]; 232

[61] [1984] FCA 57; (1984) 1 FCR 354; 6 ALD 6; Woodward, Northrop and Jenkinson JJ

[62] 1995 Determination, s 5

[63] [2003] FCA 376 at [18]

[64] Exhibit F at 6-10 (Maps 2, 3 and 4 omitted)

[65] See Attachment D

[66] Exhibit PJ1 at 11

[67] Mr Milner has used the expression “Agreed Catchment” to refer to CCDs 730, 731, 732 and that part of 708 that is to the west of the western boundary of 724: Exhibit F at 12.

[68] Exhibit F at 13-14

[69] Exhibit K

[70] Exhibit A

[71] In his oral evidence, Mr Milner gave the number of dwellings completed by each builder: Villawood  (1,161); Peat Developer (1,239); and Central Equity (760)

[72] Exhibit B

[73] Exhibit PJ2.  Looking only at CCDs 730, 731 and 732, it included the following information:

Census item	730	731	732
Age distribution (% of pop’n)
Aged 0-14	30.1%	25.5%	31.1%
Aged 15-19	2.6%	4.8%	3.5%
Aged 20-29	16.9%	18.1%	14.8%
Aged 30-39	33.1%	33.8%	34.4%
Aged 40-49	11.1 %	9.9%	11.5%
Aged 50-59	3.6%	5.9%	2.9%
Aged 60+	2.5%	2.1%	1.8%
Average age	26.3	27.2	25.7
…	…	…	…
Family type (% households)
Couple with dep’t children	55.7%	62.5%	68.0%
Couple with non-dep’t children	5.0%	5.3%	2.6%
Couple without children	25.7%	27.2%	21.3%
One parent with dep’t children	9.7%	2.7%	3.9%
One parent with non-dep’t child	1.1%	0.0%	1.9%
Other family	0.6%	0.0%	0.0%
Lone person	2.1%	2.4%	2.2%

[74] (1912) AC 443 at 454

[75] Commissioner of Taxation v Executor & Trustee Agency Co of South Australia (1938) 63 CLR 108 at 145

[76] Ballarat Brewing Co Ltd v Federal Commissioner of Taxation [1951] HCA 35; (1951) 82 CLR 364; 9 ATD 254; 25 ALJR 220 per Fullagar J

[77] Administrative Appeals Tribunal Act 1975 (AAT Act), s 33(1)(a)

[78] See, generally, Cross on Evidence, Loose Leaf edition, LexisNexis at [1295]

[79] [1973] VicRp 10; [1973] VR 122

[80] [1973] VicRp 10; [1973] VR 122 at 127

[81] [1973] VicRp 10; [1973] VR 122 at 126-127

[82] Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696; at 161; 699 quoted with approval in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ

[83] Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577; 2 ALD 60 at 539; 68-69 per Bowen CJ and Deane J

[84] See, for example, Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 402-3; 342-343 per Deane J.

[85] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 per Brennan J

[86] “The Future of Adversarial Justice”, paper presented to the 17th AIJA Annual Conference, Adelaide, 7 August 1999

[87] (1982) 5 ALN No 45

[88] (1982) 5 ALN No 45 at 61

[89] Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1 at [17] – [18]; 5-6 per Merkel, Goldberg and Weinberg JJ

[90] [2005] HCA 72; (2005) 225 CLR 88; 222 ALR 411; 87 ALD 512; 80 ALJR 228; Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ

[91] [2005] HCA 72; (2005) 225 CLR 88; 222 ALR 411; 87 ALD 512; 80 ALJR 228 at [26]; 99; 419; 234 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ

[92] [2009] HCA 39; (2009) 259 ALR 429; 83 ALJR 1123; 111 ALD 15; French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

[93] [2009] HCA 39; (2009) 259 ALR 429; 83 ALJR 1123; 111 ALD 15 at [24]; 436; 1129; 21 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ

[94] [2009] HCA 39; (2009) 259 ALR 429; 83 ALJR 1123; 111 ALD 15 at [25]; 436; 1129; 21

[95] [1954] HCA 14; (1954) 91 CLR 300; Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ at 313

[96] [1954] HCA 14; (1954) 91 CLR 300 at 313 per Dixon CJ, Webb, Kitto and Taylor JJ

[97] An example might arise in tariff classification matters where:

“           The authorities make it clear that in determining what is theessential characterof goods it is the state or condition of the goods at the time of importation that is the determining factor and that it is wrong to classify goods or to determine theiressential characterby reference to the purpose of the importer or of the purchaser.  Regard must be had to the characteristics of the goods themselves, as they would present themselves to an informed observer: see Chandler & Co. v. Collector of Customs [1907] HCA 81; (1907) 4 CLR 1719 at p1729; Whitton v. Falkiner [1915] HCA 38; (1915) 20 CLR 118 at p131; and Blackwood Hodge (Australia) Pty. Ltd. v. Collector of Customs (1980) 47 FLR 131 at 155.”

(Re Times Consultants Pty Limited v Collector of Customs (Queensland) [1987] FCA 311 at [13] per Morling and Wilcox JJ; Fox J dissenting)

[98] [1980] HCA 13; (1980) 144 CLR 13; Gibbs, Stephen, Mason, Aickin and Wilson JJ

[99] [1980] HCA 13; (1980) 144 CLR 13 at [54]; 36

[100] [1980] HCA 13; (1980) 144 CLR 13 at 34

[101] [1980] HCA 13; (1980) 144 CLR 13 at 17

“… I am not persuaded that the Tribunal’s intervention and subsequent submissions on grounds (g) to (j) inclusive contributed to the outcome in terms of the conclusion reached by the Court on those grounds.  While the Tribunal succeeded in the sense that the applicant failed on those grounds, in my view nothing was put by the Tribunal which resulted in an outcome different from that which the Court would have arrived at without the benefit of the Tribunal’s submissions.  In these circumstances, I think the applicant and the Tribunal should pay their respective costs of the resumed hearing.”

[103] AAT Act, s 25

[104]AAT Act, s 43(1)

[105] (1988) 80 ALR 329; 8 AAR 285

[106] (1988) 80 ALR 329; 8 AAR 285 at 333; 289

[107] (1992) 174 CLR 430

[108] Drake v Minister for Immigration (1979) 24 ALR 577 at 589

[109] (1992) 174 CLR 430 at 440 per Mason CJ, Deane, Toohey and Gaudron JJ, Brennan J dissenting

[110] [1984] FCA 57; (1984) 1 FCR 354; 6 ALD 6; Woodard, Northrop and Jenkinson JJ

[111] [1984] FCA 57; (1984) 1 FCR 354; 6 ALD 6 at 357; 10 per Woodward J

“... Although in many ways resembling a court of law, and although it often finds it helpful to follow, in general, the course of proceedings in a court of law, it must always be remembered that its role is fundamentally administrative.  Its task is to inquire.  By way of contrast, the task of a court of law is, in general, to decide which of two opposed cases is to be preferred. ...”

[113] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 at 68; 589 per Bowen CJ and Deane J

[114] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 at 68; 589

[115] Applicant VEAL 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; 222 ALR 411; 87 ALD 512; 80 ALJR 228 at [26]; 99; 419; 234 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ

[116] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429; (2009) 83 ALJR 1123; (2009) 111 ALD 15 at [25]; 436; 436; 1129; 21 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ

[117] [2009] HCA 39; (2009) 259 ALR 429; (2009) 83 ALJR 1123; (2009) 111 ALD 15 at [24]; 436; 1129; 21 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ

[118] For a general discussion of the Tribunal’s powers see, for example, my discussion in Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124; (2009) 107 ALD 178; 50 AAR 96 at [93]-[114]; 205-214; 124-133 and General Merchandise and Apparel Group Pty Ltd and Chief Executive Officer of Customs and Australian Weaving Mills (Party Joined) [2009] AATA 988; (2009) 51 AAR 1; (2009) 114 ALD 289 at [159]-[168]; 341-344; 58-62

[119] AAT Act, s 33(1AA)