St Mary Health & Community Services Pty Ltd and Australian Community Pharmacy Authority
[2016] AATA 673
•1 September 2016
St Mary Health & Community Services Pty Ltd and Australian Community Pharmacy Authority [2016] AATA 673 (1 September 2016)
Division
GENERAL DIVISION
File number
2015/5991
St Mary Health & Community Services Pty Ltd
APPLICANT
And
Australian Community Pharmacy Authority
RESPONDENT
And
Brian Monaghan
OTHER PARTY
DECISION
Tribunal Dr James Popple, Senior Member Date 1 September 2016 Place Canberra The decision of the Australian Community Pharmacy Authority on 9 November 2015 is affirmed.
.................................[sgd].......................................
James Popple, Senior Member
CATCHWORDS
HEALTH LAW — Pharmacies — application for approval to supply pharmaceutical benefits at specified premises — whether, at all relevant times, located in the same town as the proposed premises there were at least the equivalent of four full-time prescribing medical practitioners practising — whether, at all relevant times, located in the same town as the proposed premises there were one or two supermarkets which occupied a combined total gross leasable area of at least 2500 square metres — decision under review affirmed.
PRACTICE AND PROCEDURE — Admissibility of evidence — hearsay evidence — whether unfair to admit hearsay evidence — evidence admitted.
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 30(1A), 33(1)(b), 33(1)(c), 33(1AA)
National Health Act 1953, ss 89(a), 90, 99K(1), 99L, 105AD(2)(a)
CASES
Rv Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1
Elhelwe and Australian Community Pharmacy Authority [2015] AATA 219
Ileris and Comcare (1999) 56 ALD 301
Ranallov Australian Community Pharmacy Authority (2009) 174 FCR 457
SECONDARY MATERIALS
Department of Health, Pharmacy Location Rules Applicant’s Handbook (version 1.1, March 2014)
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (PB 65 of 2011), ss 4, 5, 10, 11, Schedule 1, Schedule 2
National Health (Australian Community Pharmacy Authority Rules) Amendment Determination 2015 (No. 1) (PB 89 of 2015)
REASONS FOR DECISION
Dr James Popple, Senior Member
1 September 2016
Summary
The applicant has applied, under the National Health Act 1953, for approval to supply pharmaceutical benefits at specified premises. There are several requirements that have to be met before the Australian Community Pharmacy Authority (the Authority) can recommend approval. Two of those requirements are that, in the same town as the proposed premises, there are:
·at least the equivalent of four full-time prescribing medical practitioners practising; and
·one or two supermarkets which occupy a combined total gross leasable area of at least 2500 m2.
The Authority decided that neither of those requirements is met. I have decided that the first of those requirements is met, but the second is not. So, the Authority was correct to recommend that the applicant’s application not be approved.
Background
On 17 September 2015, St Mary Health & Community Services Pty Ltd (St Mary) applied to the Department of Human Services (the Department) under s 90 of the National Health Act for approval to supply pharmaceutical benefits at premises in West Wyalong, New South Wales.
On 29 September 2015, the Department referred the application to the Authority. On 6 November 2015, the Authority met and considered the application. On 9 November 2015, the Authority recommended that the Secretary of the Department (the Secretary) not approve St Mary’s application.
On 17 November 2015, St Mary applied to the Tribunal, under s 105AD(2)(a) of the National Health Act, for review of that decision.
Decision under review
The decision under review is the Authority’s decision on 9 November 2015 recommending that the Secretary not approve St Mary’s application.
Parties
Mr Brian Monaghan owns a pharmacy business in West Wyalong. On 17 December 2015, he applied to be joined as a party to these proceeding. Neither St Mary nor the Authority opposed that application. I was satisfied that Mr Monaghan’s interests were affected by the decision under review so, on 14 January 2016, I ordered that he be joined as a party under s 30(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).[1]
[1] Mr Monaghan was erroneously joined in the name of his pharmacy. This was corrected on 22 June 2016.
The Authority adopted a passive role in this review, consistent with the approach set out by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman.[2] The Authority made submissions relating to its powers and procedures, and to the interpretation of relevant provisions and policies. I think that that was consistent with the Hardiman principle, and with the Authority’s obligation as a decision maker, under s 33(1AA) of the AAT Act, to assist the Tribunal to make its decision on review.
[2] (1980) 144 CLR 13 at 35–36 per Gibbs, Stephen, Mason, Aickin and Wilson JJ.
Legislative framework
Section 89(a) of the National Health Act provides that “[a] person is not entitled to receive a pharmaceutical benefit unless it is supplied … by an approved pharmacist, at or from premises in respect of which the pharmacist is for the time being approved, on presentation of a prescription …”[3] Section 90(1) provides that the Secretary may, upon application by a pharmacist, approve that pharmacist for the purpose of supplying pharmaceutical benefits at specified premises. Section 90(3A) requires an application to be referred to the Authority, except in circumstances not relevant to this review.
[3] Section 89(b) specifies other circumstances in which a person can be entitled to receive a pharmaceutical benefit.
Section 99K(1) of the National Health Act provides:
99K Functions
(1)The functions of the Authority are:
(a) to consider applications under section 90; and
(b) to make, in respect of an application under section 90:
(i)a recommendation whether or not the applicant should be approved under that section in respect of particular premises; and
(ii)if an approval is recommended—recommendations as to the conditions (if any) to which the approval should be subject …
The reviewable decision was a recommendation, made under s 99K(1)(b)(i), that St Mary should not be approved under s 90 in respect of specified premises in West Wyalong.
Section 99L of the National Health Act requires the Minister, by legislative instrument, to “determine the rules subject to which the Authority is to make recommendations under subsection 99K(1)”. Those rules are the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (PB 65 of 2011—the Rules). The Authority explained that the Rules “effectively put into force an agreement between the Commonwealth and the Pharmacy Guild of Australia to ensure (among other things) that Australians have access to PBS [Pharmaceutical Benefits Scheme] medicines, and that there is a commercially viable and sustainable network of pharmacies”.
Section 10 of the Rules relevantly provides:
10 When Authority must recommend approval of applicant
The Authority must recommend that an applicant be approved under section 90 of the Act in relation to particular premises if:
(a) for an application that involves the cancellation of an approval … that is in force in relation to approved premises …:
…
(b) for any other application:
(i)the application states that it is one of the kinds mentioned in column 2 of an item in Part 2 of Schedule 1; and
(ii)all the requirements set out in column 3 of that item are met; and
(iii) all the requirements set out in Schedule 2 are met.
Section 11 of the Rules provides that “[t]he Authority must recommend that an applicant not be approved … if a requirement, under paragraph 10(a) or (b), that applies in relation to the application is not met”.
The parties agree that s 10(b) of the Rules applies to St Mary’s application, and that the application meets the requirements set out in Schedule 2 to the Rules.[4] St Mary’s application is of the kind mentioned in column 2 of item 132 in Part 2 of Schedule 1 to the Rules: “New additional pharmacy (at least 10 km)”. The requirements (set out in column 3) for applications of that kind are:
[4] These are general requirements about the proposed premises.
1.The proposed premises are:
(a) located in the same town as an approved premises; and
(b) at least 200 m, in a straight line, from the nearest approved premises; and
(c) at least 10 km, by the shortest lawful access route, from any approved premises other than the approved premises mentioned in paragraph (b).
2.The Authority is satisfied that, at all relevant times, located in the same town as the proposed premises are:
(a) at least the equivalent of 4 full-time prescribing medical practitioners practising; and
(b) one or 2 supermarkets which occupy a combined total gross leasable area of at least 2500 m2.
The parties agree that St Mary’s application meets requirement 1. The question is whether it also meets requirement 2(a) and requirement 2(b). The reviewable decision was that it meets neither.
Issues
The issues in this review are whether (at all relevant times):
·there were at least the equivalent of four full-time prescribing medical practitioners practising in West Wyalong (requirement 2(a)); and
·there were one or two supermarkets in West Wyalong which occupied a combined total gross leasable area of at least 2500 m2 (requirement 2(b)).
If I find that both of these requirements are met, then I must set aside the decision under review and substitute a decision recommending that the Secretary approve St Mary’s application. If either of these requirements is not met, I must affirm the decision under review.
Relevant times
Requirements 2(a) and 2(b) have to be met “at all relevant times”. Also in column 3 of item 132 in Part 2 of Schedule 1 to the Rules is the following:
3.For this item, all relevant times means:
(a) on the day on which the application was made; and
(b) the day on which the application is considered by the Authority.[5]
Column 3 is labelled “Requirements”, but this is not so much a third requirement as an aid to interpreting requirement 2.
[5] This “requirement” was repealed from the amended Rules (see [16] below), but a definition in the same terms was inserted into section 5(1), to apply throughout the amended Rules.
St Mary made its application on 17 September 2015; the Authority considered the application on 6 November 2015. In this review, I stand in the shoes of the Authority. So, it is arguable that the second relevant time is the day on which I consider St Mary’s application, which could be said to be the period between the hearing and the date of this decision. Nothing turns on this. St Mary and Mr Monaghan disagree about whether requirements 2(a) and 2(b) are met, but neither says that there has been any relevant change in circumstances since 17 September 2015.
The amended Rules
The Rules commenced on 18 October 2011. They were amended on 10 November 2015 by the National Health (Australian Community Pharmacy Authority Rules) Amendment Determination 2015 (No. 1) (PB 89 of 2015). Section 4 of the amended Rules provides that the Rules “as in force immediately before 10 November 2015, [continue] to apply in relation to the consideration, by the Authority, of an application made before 10 November 2015”. St Mary’s application was made (and considered) before 10 November 2015.
Unless otherwise indicated,[6] all references to the Rules in these reasons for decision are to the Rules as in force immediately before 10 November 2015.
[6] See note 5 above, and note 7, [32] and [42] below.
Prescribing medical practitioners
Requirement 2(a) in column 3 of item 132 in Part 2 of Schedule 1 to the Rules is that:
The Authority is satisfied that, at all relevant times, located in the same town as the proposed premises are … at least the equivalent of 4 full-time prescribing medical practitioners practising …
Section 5 of the Rules provides that “prescribing medical practitioner means a medical practitioner who provides general practice services to the community in which he or she practises, including the issuing of prescriptions for pharmaceutical benefits”. Section 5 also provides that, in this context, “full-time means … providing the services of a prescribing medical practitioner for at least 38 hours each week”. It follows that the requirement that there are “at least the equivalent of 4 full-time prescribing medical practitioners practising” means that there are a number of prescribing general practitioners (GPs) practising for a total of at least 152 hours (that is, 4 × 38 hours) each week in West Wyalong.[7]
[7] See Ranallo v Australian Community Pharmacy Authority (2009) 174 FCR 457 at 469 [51]–[59] per McKerracher J. In the amended Rules, the words “at least 38 hours each week” are replaced by “38 hours in a week”. Because of s 4 of the amended Rules (see [16] above), I must consider the Rules as they were before they were amended. However, the removal of the words “at least” from the definition of “full-time” would have had no effect on the result in this review, because requirement 2(a) is that there are “at least the equivalent of 4 full-time prescribing medical practitioners practising” (emphasis added).
Evidence
St Mary says that there were five GPs working a total of 222 hours per week in West Wyalong at all relevant times. Mr Monaghan gave evidence, based on his pharmacy’s records, of the number of prescriptions written by various doctors and presented at his pharmacy. He argued that those records demonstrate that not all of the five GPs are working as many hours as claimed by St Mary—or, at least, that those GPs are not prescribing during all of those hours.
I do not think that Mr Monaghan’s pharmacy’s records can be used in the way that he contends. Even assuming that his records accurately reflect the prescribing output of each West Wyalong GP (which would involve assumptions about the proportion of each GP’s prescriptions that were filled at Mr Monaghan’s pharmacy), they do not assist me in deciding whether requirement 2(a) is met. In Ranallo v Australian Community Pharmacy Authority, the Federal Court considered an earlier version of the Rules, and the circumstances when it could be said that “the equivalent of at least 8 full-time prescribing medical practitioners have been practising” at a medical centre.[8] The Court concluded that:
… the natural and ordinary meaning of the expression “full-time prescribing medical practitioners” (emphasis added) is a meaning which relates to the time that those practitioners spend in carrying out their duties or being available to carry out their duties. …
To measure “full-time” by reference to productivity or output rather than to hours in attendance, could introduce any number of arguments as to how productivity in the context of this legislative scheme should be measured. I do not consider that anything in the scheme itself or references to it in the secondary materials, would support the introduction of potentially subjective and possibly vague concepts in considering whether or not the equivalent of at least eight full-time prescribing medical practitioners have been practising at the Centre …[9]
I think that the Court’s comments are applicable to the current Rules, and to the current legislative scheme. It follows that I should consider the number of hours that West Wyalong GPs spent in carrying out their duties or being available to carry out their duties, rather than their productivity or output.[10]
[8] (2009) 174 FCR 457 at 459 [6] per McKerracher J.
[9] (2009) 174 FCR 457 at 470 [60]–[61] per McKerracher J.
[10] I do not need to consider whether (as the evidence suggests) some of the GPs regularly spend a few hours of each week at the Wyalong Hospital and a few hours each week at a nursing home. It is not relevant whether those GPs issue prescriptions when working at the hospital or at the nursing home. Time spent at those locations (like time spent at a medical centre) is time carrying out their duties or being available to carry out their duties.
St Mary says that five GPs work at three medical centres in West Wyalong. St Mary obtained statements from a GP at one centre, and the practice manager at another. I accept those two statements as evidence that three GPs at two medical centres work a total of 136 hours a week. St Mary also seeks to rely on a statement by Mr Elprince Samaan in relation to two GPs at the third medical centre. Mr Samaan is a pharmacist, and a director of, and shareholder in, St Mary. Mr Samaan says that he spoke to a GP at the third medical centre, and that that GP confirmed that two GPs at the centre work a total of 86 hours a week. He says that the GPs at that centre declined to provide statements to that effect because of “a commercial conflict of interest”.
If I accept Mr Samaan’s evidence about the hours worked by the two GPs at the third medical centre, then (with the evidence about the hours worked by the other three GPs) requirement 2(a) is met. If I do not accept it, then requirement 2(a) is not met.
Hearsay evidence
Mr Monaghan points out that Mr Samaan’s evidence about the two GPs at the third medical centre is hearsay, and that he has not had the opportunity to test that evidence by cross-examining either of those GPs. Section 33(1)(b) of the AAT Act provides that Tribunal proceedings “shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit”. Section 33(1)(c) provides that “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”.[11] As the Tribunal explained in Ileris and Comcare:
Where evidence adduced for a hearsay purpose meets the test of relevance, the tribunal may admit the evidence notwithstanding that it would not be admissible in a court.[12]
So, I can accept Mr Samaan’s evidence about the two GPs at the third medical centre even though it is hearsay. Mr Monaghan says that it would be unfair for me to do so.
[11] I do not think that Section 9 of the Rules (which restricts the information that can be considered by the Authority) restricts the information that I can consider, especially given the breadth of s 33(1) of the AAT Act. Similarly, I do not think that I am restricted by the Pharmacy Location Rules Applicant’s Handbook which the Department of Health prepared for the benefit of applicants and which, in any event, I think does not restrict the Authority, either.
[12] (1999) 56 ALD 301 at 306 [38] per Bayne SM.
The then President of the Tribunal considered the question of admitting hearsay evidence in Barbaro and Minister for Immigration and Ethnic Affairs. Davies J said:
Although it is not bound by the rules of evidence, this Tribunal does not receive into evidence all material which a party may wish to put before it. … The principle which governs the reception of evidence is that the review must be determined after a hearing and that that hearing should be fair to all parties.
… Although the [AAT] Act does not expressly say so, it is a necessary implication that the hearing shall be a hearing fair to all parties. It is not inconsistent with the provision of a fair hearing that the Tribunal should receive evidentiary material which is not admissible in a court of law. …
In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.
It is not in every case fair to all parties or otherwise appropriate that the Tribunal should insist upon the best evidence of disputed facts, even critical facts. There are occasions when it is inappropriate to insist upon such evidence and when it is appropriate to receive evidence which, though of a logically probative nature, cannot be tested by one or more of the parties. In such a case, the party adversely affected by the evidence is given a fair hearing by his attendance at the hearing, his awareness of the evidence adduced against him and his ability to adduce evidence to the contrary if he sees fit to do so. The fair hearing in this instance takes account of the function of the Tribunal including the fact that it is an administrative tribunal and not a court of law. As an administrative tribunal, it has the duty to review an administrative decision and to exercise the decision-making power. It is necessary that the nature of the procedures adopted at the hearing and the nature of the evidence which is received by the Tribunal be adapted to the function which it performs.[13]
[13] (1980) 3 ALD 1 at 4–5 per Davies J.
There is no doubt that Mr Samaan’s hearsay evidence is relevant: it is the only evidence before me about the number of hours in each week that two of the five GPs are carrying out their duties or are available to carry out their duties.[14] I accept Mr Samaan’s evidence that he sought to obtain a statement from those GPs, but they refused to give one. I do not need to consider whether their reason for refusing is the reason that Mr Samaan says they gave him (a commercial conflict of interest). I do not think it matters why they did not provide a statement: what is important is that Mr Samaan tried to obtain one.
[14] I have some evidence before me about the opening hours of various medical centres. However, given that some GPs also work at the Wyalong Hospital and at a nursing home, that evidence is not of much assistance in determining the number of hours in each week that those GPs are carrying out their duties or are available to carry out their duties.
I note that Mr Monaghan (who could be said to be adversely affected by Mr Samaan’s hearsay evidence) was given a fair hearing by his attendance at the hearing, at which he was represented. And he was aware of Mr Samaan’s hearsay evidence before the hearing, and had the opportunity to adduce evidence to the contrary if he wanted to.[15]
[15] This is relevant, even though the onus is on St Mary to establish that the requirements are met.
For these reasons, and having regard to the nature of the evidence and the circumstances of this review, I do not think it would be unfair for me to accept Mr Samaan’s evidence about the two GPs at the third medical centre. I accept that evidence.
Conclusion: requirement 2(a)
I am satisfied (on the balance of probabilities) that, at all relevant times, at least the equivalent of four full-time prescribing medical practitioners were practising in West Wyalong. Accordingly, requirement 2(a) is met.
Supermarkets
Requirement 2(b) in column 3 of item 132 in Part 2 of Schedule 1 to the Rules is that:
The Authority is satisfied that, at all relevant times, located in the same town as the proposed premises are … one or 2 supermarkets which occupy a combined total gross leasable area of at least 2500 m2.
As the Tribunal explained in Elhelwe and Australian Community Pharmacy Authority, the supermarket requirement is intended “to give some assurance that there be a sufficient customer base for the new pharmacy to be viable”.[16]
[16] [2015] AATA 219 at [42] per Constance DP. The Tribunal in Elhelwe considered an earlier version of the Rules.
Section 5 of the Rules provides that “supermarket means a retail store or market the primary business of which is the sale of a range of food, beverages, groceries and other domestic goods”.
Section 5 also provides that, in this context, “gross leasable area means … the total floor area of the supermarket excluding loading docks”. The definition in s 5 of the amended Rules is different: “the total floor area of the supermarket that is accessible by customers for the purpose of purchasing supermarket items, excluding loading docks and car parks” (the emphasized words have been added). The Authority says that I can have regard to the amended Rules when interpreting the Rules before they were amended. I disagree. Because of the transitional provision in s 4 of the amended Rules, I think that I should simply apply the rules as in force immediately before 10 November 2015 (see [16]–[17] above). However, in case I am wrong about that, I will consider both definitions of “gross leasable area”.[17]
[17] See [42] below.
St Mary and Mr Monaghan agree that there is only one building in West Wyalong that I need to consider. There are, relevantly, two areas in the building:
·Area A is 2094 m2. St Mary and Mr Monaghan agree that Area A is a supermarket (“Bernardi’s Marketplace, Supa IGA plus liquor”) for the purposes of the Rules.
·Area B is 719 m2. Mr Monaghan says that Area B is used for a business (“Discount Dave’s”) that is not a supermarket. St Mary says that all or part of Area B should be considered to be a supermarket, or part of the supermarket operating in Area A.
The total floor area of Area A and Area B is 2813 m2; neither includes loading docks or car parks. So, if both areas comprise a supermarket (or two supermarkets) for the purposes of the Rules, then requirement 2(b) is met. If no part of Area B—or less than 406 m2 of Area B—is a supermarket, or part of the supermarket operating in Area A, then requirement 2(b) is not met.
I make the findings set out in [35], [38] and [41] below, on the balance of probabilities. These findings are based on the evidence before me, including photographic evidence provided by Mr Samaan and Mr Monaghan; and evidence given by Mr Joseph Bernardi, the Chief Executive Officer—Supermarkets of Bernardi Group Pty Ltd (the Bernardi Group). This evidence is generally uncontested.
There is one public entrance to the building. The sign over that public entrance welcomes customers to “Bernardi’s Marketplace, Supa IGA plus liquor”. Public access to Area B is through Area A, and is unimpeded. There is a single set of checkouts in Area A (near the public entrance) at which products displayed in Area A and Area B are purchased. A customer purchasing items displayed in either Area A or Area B (or both) does so in a single transaction and receives a single tax invoice. That invoice is headed “Bernardi’s Marketplace”. There is one public telephone number for all of the Bernardi Group’s operations in the building.
Because of the findings set out in [35] above, St Mary says that Area A and Area B should be considered to be a supermarket or two supermarkets.
Mr Bernardi says that the Bernardi Group owns and operates two separate businesses in the building: a supermarket (“Bernardi’s Marketplace”) in Area A; and a discount variety store (“Discount Dave’s”) in Area B. He says that the Bernardi Group manages the two businesses in the way set out in [35] above for reasons of labour efficiencies.
Products for sale in Area A are: food, beverages, groceries and other domestic goods. Products for sale in Area B are: automotive, garden and outdoor, hardware, electrical, stationery, camping, fishing, homeware, manchester, pet, furniture, toys, craft, giftware, health and beauty products. At the point where customers can move from Area A to Area B, there is a sign welcoming them to “Discount Dave’s”. There is separate signage on the outside of the building for “Bernardi’s Marketplace” and “Discount Dave’s”, using different colouring and logos. That colouring and those logos are used inside the building, including in the labelling of products on the shelves, so that products for sale in each of Area A and Area B are generally branded consistently, but differently from products for sale in the other area. Some staff usually work in only one of Area A or Area B, and wear a uniform depending on which area they work in. Other staff (including staff working at the checkouts or in the loading dock) do not wear either uniform.
Because of the findings set out in [38] above, Mr Monaghan says that Area B should not be considered to be a supermarket or part of a supermarket.
On the basis of the findings set out in [35] and [38] above only, I would agree with Mr Monaghan. I think that, notwithstanding the administrative efficiencies that have been implemented, there are two separate businesses operating in the building. And the business operated in Area B (“Discount Dave’s”) is not a supermarket: it sells some supermarket products, but its primary business is not the sale of a range of food, beverages, groceries and other domestic goods. However, there is one aspect of the operation of the two businesses that means that part of Area B should be considered to be part of the supermarket that operates in Area A.
The supermarket sells dairy and frozen food. The refrigerators and freezers are located in Area A, but their doors open into Area B. That means that a customer can only access dairy and frozen food products by walking into Area B: some of the supermarket products for sale in “Bernardi’s Marketplace” can only be accessed from “Discount Dave’s”.[18]
[18] No doubt this arrangement is intended to increase the number of “Bernardi’s Marketplace” customers who walk into “Discount Dave’s”.
The Rules provide that “gross leasable area” means “the total floor area of the supermarket excluding loading docks”. I think that the placement of the refrigerators and freezers means that part of Area B is effectively part of the total floor area of the supermarket. It follows that part of Area B is part of the gross leasable area of the supermarket which also includes all of Area A. I think that that is the case, even without having regard to the amended definition of “gross leasable area” in the amended Rules (see [32] above). However, I note that that amended definition (“the total floor area of the supermarket that is accessible by customers for the purpose of purchasing supermarket items”) would even more clearly include part of Area B.
I have been provided with a scaled floor plan showing the layout of Area A and Area B. It is clear from that plan that only a small proportion of Area B is part of the supermarket in the sense that it is used by customers to access dairy and frozen food. That proportion is certainly no more than 20 per cent of Area B—and probably a good deal less than that.
I find, on the balance of probabilities, that (for the purposes of the Rules) the supermarket in the building occupies a total gross leasable area of no more than 2237.8 m2 (that is, Area A + 20% × Area B).
Conclusion: requirement 2(b)
I am not satisfied (on the balance of probabilities) that, at all relevant times, there were one or two supermarkets in West Wyalong which occupied a combined total gross leasable area of at least 2500 m2. Accordingly, requirement 2(b) is not met.
Conclusion
Section 11 of the Rules provides that the Authority must recommend to the Secretary that an applicant not be approved under section 90 of the National Health Act in relation to particular premises if a requirement, under s 10(a) or (b) of the Rules, is not met. Requirement 2(a) is met, but requirement 2(b) is not. Requirement 2(b) is a requirement under s 10(b) of the Rules. Accordingly, I must affirm the Authority’s decision to recommend to the Secretary that St Mary not be approved. The Secretary must now make a decision under section 90(1) of the National Health Act whether to approve St Mary for the purpose of supplying pharmaceutical benefits at the specified premises.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple .................................[sgd].......................................
Associate
Dated 1 September 2016
Date of hearing 21 July 2016 Date final submissions received 8 August 2016 Counsel for the Applicant Mr Scott Goodman Solicitors for the Applicant Clinch Long Woodbridge, Lawyers Counsel for the Respondent Mr Bradley Dean Solicitors for the Respondent Australian Government Solicitor Counsel for the Other Party Ms Rhonda Henderson Solicitors for the Other Party Meridian Lawyers
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