Walkerden v Wodonga Pharmacy Pty Ltd

Case [2015] FCA 273

FEDERAL COURT OF AUSTRALIA

Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273

Citation: Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273
Appeal from: In VID 470 of 2014: Wodonga Pharmacy Pty Ltd v Annette Walkerden [2014] AATA 496
Parties:

ANNETTE WALKERDEN and DIPAK SANGHVI v WODONGA PHARMACY PTY LTD and AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

ANNETTE WALKERDEN and DIPAK SANGHVI v WODONGA PHARMACY PTY LTD and SECRETARY, DEPARTMENT OF HEALTH
File numbers: VID 470 of 2014
VID 542 of 2014
Judge: MORTIMER J
Date of judgment: 27 March 2015
Catchwords: ADMINISTRATIVE LAW – appeal by other parties from decision of Administrative Appeals Tribunal recommending approval to supply pharmaceutical benefits from particular premises – “temporary selling point”, “single management”, “commercial establishment” and “likely to be occupied” under National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth) (location rules) – purpose of location rules to facilitate sustainable and accessible supply of pharmaceutical benefits – no error of law in Tribunal decision – appeal dismissed
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 16(1)(a)
Legislative Instruments Act 2003 (Cth) ss 6(d)(i), 13, 24, 42
National Health Act 1953 (Cth) ss 90, 99L, 99K
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth), s 5(1), 6(2), 7, 10, Sch 1 Pt 2 Item 133
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Alexander v Australian Community Pharmacy Authority [2010] FCA 189; (2010) 265 ALR 424
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commonwealth v Crowe (1992) 39 FCR 435
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
McDonald v Director-General of Social Services (1984) 1 FCR 354
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Pharmacy Restructuring Authority v Chatfield (1993) 43 FCR 418
Poignand v NZI Securities Australia Ltd (1992) 37 FCR 363
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287
Yu v Minister for Health (No 2) [2013] FCA 367; (2013) 216 FCR 188
Date of hearing: 20 November 2014
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 120
Counsel for the Applicants: Mr M J Hoyne
Solicitor for the Applicants: Best Hooper Solicitors
Counsel for the First Respondent: Mr D M Favell
Solicitor for the First Respondent: Gadens
Counsel for the Second Respondents: Mr A Dillon
Solicitor for the Second Respondents: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT…

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AGLC
Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273
Case
[2015] FCA 273
Decision Date

CaseChat Overview and Summary

In the case of Walkerden v Wodonga Pharmacy Pty Ltd, the applicants, represented by Ms Walkerden and Mr Sanghvi, appealed against the decision of the Administrative Appeals Tribunal (Tribunal) which recommended approval to Wodonga Pharmacy for supplying pharmaceutical benefits from premises in the White Box Rise Shopping Centre in Wodonga. The applicants contested whether the premises met the criteria for being located in a "small shopping centre" under the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth) (2011 Rules). The primary legal issue before the court was whether the Tribunal's decision recommending approval was legally sound. The court had to interpret the terms "temporary selling point", "single management", "commercial establishment", and "likely to be occupied" under the 2011 Rules and assess the Tribunal's application of these terms.

The court found that the Tribunal correctly applied the 2011 Rules in its decision. The court reviewed the evidence presented by the Asset Manager and Lending Agent for the shopping centre owner, which was not significantly controverted, and agreed with the Tribunal's finding that the White Box Rise Shopping Centre qualified as a "shopping centre" under the 2011 Rules. The court further considered the dispute between Wodonga Pharmacy and the Authority regarding the number of commercial establishments and the gross leasable area of the shopping centre. It concluded that the Tribunal's decision was based on proper interpretation and application of the statutory criteria and was free from legal error. Therefore, the court dismissed the appeal by the applicants, finding no basis for the relief claimed under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The court ordered that the applicants' appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be dismissed and that they pay the respondents' costs of and incidental to the appeal. Additionally, the court dismissed the applicants' application for relief under section 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), with the applicants also ordered to pay the respondents' costs of and incidental to the application.

Orders

Orders of the court

1. The applicants’ appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is dismissed.

2. The applicants pay the respondents’ costs of and incidental to the appeal, to be taxed in default of agreement.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The applicants’ application for relief pursuant to s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) is dismissed.

2. The applicants pay the respondents’ costs of and incidental to the application, to be taxed in default of agreement.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons which follow the s 44 appeal should be dismissed. The dismissal of that appeal means there is no basis for the relief claimed under the AD(JR) Act.BACKGROUND FACTS AND PROCEDURAL HISTORY Wodonga Pharmacy made an application to the Secretary for an approval under s 90 of the National Health Act 1953 (Cth) to supply pharmaceutical benefits from particular premises in the White Box Rise Shopping Centre in Wodonga. The Secretary referred the application to the Authority, as required under s 90(3A). The Authority’s statutory task, under s 99K of the Act, was to make a recommendation to the Secretary whether an approval under s 90 of the Act to conduct a pharmacy should or should not be granted. Section 10 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth) imposed a duty on the Authority to recommend that an applicant be approved where particular requirements are met. The presently relevant requirements are those in Item 133 of Pt 2 of Sch 1 to the 2011 Rules, which deals with an application for a new pharmacy to be operated from a “small shopping centre”. The proper construction of the phrase “small shopping centre” and its application in the Tribunal’s decision on review are two of the issues arising in the s 44 appeal. On 26 July 2013, the Authority recommended that Wodonga Pharmacy’s application not be approved. Wodonga Pharmacy applied for review to the Tribunal under s 105AD(2)(a) of the National Health Act. On 18 July 2014, the Tribunal set aside the decision of the Authority and, in its place, recommended that Wodonga Pharmacy be approved under s 90. The Secretary subsequently granted an approval under s 90 to Wodonga Pharmacy on 30 July 2014. On 14 August 2014, the applicants lodged an appeal under s 44 of the AAT Act to this Court, in respect of the Tribunal’s decision. Having recognised that any success in the s 44 appeal would be insufficient given the Secretary had granted an approval under s 90, the applicants then issued proceedings under the AD(JR) Act to have the Secretary’s approval decision set aside. Those proceedings were issued on 17 September 2014 and were out of time under s 11 of the AD(JR) Act. There was no opposition to an extension of time being granted to the applicants, nor to that application being heard and determined together with the s 44 appeal. Both Wodonga Pharmacy and (jointly) the Authority and the Secretary filed written submissions in advance of the hearing and their respective counsel developed those orally at the hearing. The Authority and the Secretary appeared, noting the restraints imposed by R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36, to assist the Court in terms of the operation of the legislative scheme and to make submissions about the proper construction of those aspects of it in issue. None of the parties objected to the Authority or the Secretary’s participation in that way, and indeed the Authority and the Secretary’s joint submissions were helpful. I have considered the written and oral submissions, and refer to them in these reasons where necessary. RELEVANT LEGISLATIVE PROVISIONS

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It should be noted that included in the list in s 7(2) of places that are not commercial establishments are “temporary selling points”. This phrase is not defined, although the Explanatory Statement referred to “temporary selling points such as those used for sales or promotions”: Explanatory Statement, National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth), at 7. THE TRIBUNAL’S DECISION It appears from the Tribunal’s reasons that Ms Walkerden was represented by her advocate, and Mr Sanghvi was represented by counsel. It also appears from the Tribunal’s reasons that the principal arguments put on behalf of the objecting and existing pharmacies were put by counsel for Mr Sanghvi. In this Court, the same counsel appeared for both Ms Walkerden and Mr Sanghvi. For ease of reference, when I describe the submissions made to the Tribunal by the objecting pharmacies I shall describe them as made by “the applicants”, even if it may have been the case that the submissions were made by counsel for Mr Sanghvi and adopted or endorsed by Ms Walkerden’s advocate. The Tribunal noted that Wodonga Pharmacy’s legal right to occupy the premises from which it proposed to operate the pharmacy had been in issue, but was no longer contested. That left for determination, as the Tribunal described it, the issue whether or not the proposed premises are located in a “small shopping centre” (at [9]). The parties agreed the Tribunal had correctly identified the issue to be determined. Relying on the evidence of the witness who was the Asset Manager and Lending Agent for the owner of the shopping centre and noting his evidence was not controverted in any significant way, the Tribunal found the White Box Rise Shopping Centre met the statutory definition of a “shopping centre” under s 5(1) of the 2011 Rules as a group of shops or associated facilities under single management. The critical passage of the Tribunal’s reasons is the following (at [50]):While I agree with Mr Hoyne’s submission that there was no evidence of managing the centre as a whole to encourage the use of it as a single integrated facility, I do not agree that is fatal to establishing that the proposed premises is in a shopping centre. In my opinion, the matters set out in (a) (ii) may become significant where the shopping centre is managed by two or more managers working under an agreement. It is less significant where the entire shopping centre is managed by one manager. Unless there was evidence to the contrary, in such a case it is logically in the interests of the manager to encourage the use of the centre as a single integrated facility. There was no evidence to the contrary. The Tribunal then considered whether the centre was a “small shopping centre”. It noted of the four requirements in s 5(1) of the 2011 Rules, there was no dispute as to two of them: namely, that the Woolworths supermarket occupied a gross leasable area of at least 2,500 m², and that the shopping centre had parking facilities. The dispute between the Wodonga Pharmacy and the Authority (and the applicants) centred on the remaining two requirements: whether there were “at least 15 other commercial establishments” and whether the centre had a “gross leasable area of at least 5 000 m²”.

Ratio Decidendi

Legal Principle Established

All parties filed written outlines of submissions prior to the hearing, and developed those submissions orally at the hearing. I have considered the submissions made, and I refer to them below where necessary.CONSIDERATIONThe purpose of the 2011 Rules The 2011 Rules themselves contain no statement of purposes. There is nothing in the determination or rule-making power, s 99L of the National Health Act, which indicates any general or specific purpose to attach to the making of determinations under that provision. All parties submitted the Court can and should examine the extrinsic material to which the Tribunal referred in its reasons, especially at [103]-[110]. The principal sources to which the Tribunal referred were the Explanatory Statement accompanying the 2011 Rules, and a report by private consultants, the Urbis report of June 2010 titled “Review of the Pharmacy Location Rules under the Fourth Community Pharmacy Agreement”. The Urbis report was produced as part of a government review which led to the 2011 Rules. The Explanatory Statement to the 2011 Rules refers to the Urbis report, and the Government’s acceptance of the recommendations made in it. None of those particular recommendations has any bearing on the aspects of the 2011 Rules in dispute in the s 44 appeal. The applicants did rely on what was said in the Explanatory Statement about the concept of “single management” (at 5):“single management” – for a shopping centre or medical centre means one or more managers that are cooperatively managing the centre (under an agreement) as a whole, for the purpose of encouraging the use of the centre as a single integrated facility. It would include managing the security, pedestrian and vehicular access, cleaning, signage, trading hours, marketing and maintenance of buildings, common areas and utilities, for the centre. Single management does not include owners or tenants that cooperate only on particular occasions or only in relation to some (not all) of the matters described above. For example, a group of shop owners in a shopping arcade might only cooperatively manage the promotion of the arcade over the Christmas shopping period or they may cooperatively manage the arrangements for cleaning and maintenance of the arcade, however, each owner individually manages the marketing and trading hours of their own shop. In these circumstances, the requirement of single management would not be met. The applicants also relied on what was said in the Explanatory Statement about the concept of “commercial establishment” (at 6-7):Section 7 makes clear that the meaning of “commercial establishment” is intended to include those premises from which businesses will provide goods and/or services to consumers. It is intended that these types of businesses would attract consumers to a shopping centre.Subsection 7(1) describes those types of business which the term “commercialestablishment” can include and that those businesses described do not need to be operating in order to be considered “commercial establishments” for the purpose of the Authority considering an application.