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Wodonga Pharmacy Pty Ltd and Australian Community Pharmacy Authority Annette Walkerden Dipak Sanghvi OTHER PARTIES

Wodonga Pharmacy Pty Ltd and Australian Community Pharmacy Authority Annette Walkerden Dipak Sanghvi OTHER PARTIES

Case [2014] AATA 496 18 July 2014

Natural Justice & Procedural Fairness

Administrative Law

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[2014] AATA 496

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/4297

Re

Wodonga Pharmacy Pty Ltd

APPLICANT

And

Australian Community Pharmacy Authority

RESPONDENT

And

Annette Walkerden

Dipak Sanghvi

OTHER PARTIES

DECISION

Tribunal
Egon Fice, Senior Member

Date 18 July 2014

Place Melbourne
The Tribunal sets aside the recommendation decision made by the Respondent on
26 July 2013 and in substitution recommends that Wodonga Pharmacy Pty Ltd be approved under s. 90 of the National Health Act 1953 to supply pharmaceutical benefits from Shops 4 & 5, White Box Rise Shopping Centre.

........[sgd Egon Fice]................................................................
Egon Fice, Senior Member
PHARMACIES – Recommendation of Australian Community Pharmacy Authority – Approval to supply pharmaceutical benefits – New pharmacy in a small shopping centre – Legal right to occupy the proposed premises – Information to be considered by the Authority – Single management – Commercial establishment – Gross leasable area of at least 5000 m²– At least 15 other commercial establishments – Temporary selling points – Occupied by or likely to be occupied by one business – Separate commercial establishments
PRACTICE AND PROCEDURE – Statutory interpretation – Onus of proof – Inferences
Legislation
Acts Interpretation Act 1901 (Cth) ss 15AA, 46A
Administrative Appeals Tribunal Act 1975 (Cth) ss 3, 33, 33(2A), 37, 40(1A)
Legislative Instruments Act 2003 (Cth) ss 6, 13
National Health Act 1953 (Cth) ss 90, 99K, 99L, 105AD
Rules
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth)
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 No. PB 65 of 2011 (Cth) Explanatory Statement
Cases
Boughey v The Queen (1986) 161 CLR 10
Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389
De L v Director General, New South Wales Department of Community Services and Another (1997) 143 ALR 171
Issa and Australian Community Pharmacy Authority and another (2012) 128 ALD 631
Jones v Dunkel (1959) 101 CLR 298
Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178
Lobo and Department of Immigration and Citizenship [2011] AATA 705
McDonald v Director-General of Social Security (1984) 6 ALD 6
Perri and Another v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Pioneer Concrete Services Ltd and Another v Galli and Another [1985] V.R. 675
Poignand v NZI Securities Australia Ltd and Others (1992) 37 FCR 363
R v Lao (2002) 5 VR 129
St George Bank Ltd v Federal Commissioner of Taxation (2009) 176 FCR 424
The Queen v The Australian Broadcasting Tribunal and Others; ex parte Hardiman and Others (1980) 144 CLR 13
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union and Others (1979) 27 ALR 367
Tisdall v Webber (2011) 193 FCR 260
Walsh v Lonsdale (1882) 21 Ch D 9
Watson v Australian Community Pharmacy Authority and Others (2012) 131 ALD 210
Secondary Materials
Bradbrook A, Moore A, MacCallum S, Grattan S, Australian Real Property Law (5^th ed, Thomson Reuters, 2011)
Hattingh H L, The regulation of pharmacy ownership in Australia: The potential impact of changes to the health landscape

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Wodonga Pharmacy Pty Ltd and Australian Community Pharmacy Authority Annette Walkerden Dipak Sanghvi OTHER PARTIES [2014] AATA 496
Case: [2014] AATA 496
Decision Date

CaseChat Overview and Summary

Wodonga Pharmacy Pty Ltd sought to establish a pathology business in the White Box Rise Shopping Centre. The Australian Community Pharmacy Authority (ACPA) had previously declined the application, and Wodonga Pharmacy sought a review of that decision. The primary legal issues before the court were whether the proposed premises qualified as a shopping centre under the relevant rules, whether Wodonga Pharmacy had a legal right to occupy the premises, and whether the shopping centre met the requirements of having at least 15 other commercial establishments. Additionally, the court had to determine the scope of evidence that could be considered in the review.

The court found that the White Box Rise Shopping Centre met the definition of a shopping centre and that Wodonga Pharmacy had a legal right to occupy the premises. It also found that the shopping centre contained at least 15 other commercial establishments, despite the presence of temporary selling points. The court interpreted the term "temporary selling point" to refer to premises excluded by the rules, rather than the business activity conducted at specific premises. The court concluded that Discount Cosmetics Clearance Centre, Cubano Facewear, Dorevitch Pathology, and the DVD Warehouse kiosk were not temporary selling points.

In light of these findings, the court allowed Wodonga Pharmacy to establish the pathology business in the White Box Rise Shopping Centre, subject to procedural fairness being maintained during the review process. The court also allowed additional information or evidence to be tendered during the hearing, as the making of Directions under s. 33(2A) of the Rules was considered a request for further information, which complied with s. 9(b) of the Rules.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my opinion, the operation of the pathology business and the medical centre, while complimentary, nevertheless are discrete business activities and are likely to attract additional customers to the shopping centre. Because the purpose of requiring there to be at least 15 other commercial establishments in the shopping centre is to attract consumers to that centre, and the business activities of each of those establishments is independent of the other, I find that they are two discrete commercial establishments for the purposes of the Rules.CONCLUSION Although all of the parties who appeared before me on the hearing of this matter agreed that Wodonga Pharmacy had a legal right to occupy the proposed premises at the relevant time, in order to properly fulfil the role which I am required to play in reviewing ACPA’s decision, I examined that issue. I have found that the Wodonga Pharmacy had, on the day the application was made, and at the date of hearing this matter, a legal right to occupy the proposed premises situated in the White Box Rise Shopping Centre. In the course of the hearing an issue also arose regarding the evidence which I could consider at that time, given the constraints imposed on ACPA by s. 9 of the Rules. I have found that the Tribunal’s procedures on reviewing decisions of ACPA made under the Rules are subject to the restrictions set out in s. 9. However, I have found that the making of Directions under s. 33(2A), by the Tribunal is, in effect, a request to parties to provide further information, hence satisfying s. 9(b) of the Rules. Therefore, subject to ensuring procedural fairness was provided to all parties, I allowed additional information or evidence to be tendered in the course of the hearing. The application made by Wodonga Pharmacy was made under Item 133 of Schedule 1, Part 2 of the Rules. I have found that the White Box Rise Shopping Centre is a shopping centre as that expression is defined in the Rules. The proposed premises are at least 500 m in a straight line from the nearest approved premises and there are no approved premises in that shopping centre. I have also found that the shopping centre meets the requirements to satisfy the definition of small shopping centre in the Rules. That is because I have found that the Caltex service station is part of the shopping centre and hence the gross leasable area of the shopping centre exceeds 5000 m². It contains a Woolworths supermarket with a gross leasable area exceeding 2500 m² and it has customer parking facilities. The most contentious issue in this case was the question whether the shopping centre contained at least 15 other commercial establishments. I have found that it does meet that requirement. I have found that the expression temporary selling point is a reference to premises where the requisite business activity is conducted or likely to be conducted but which is expressly excluded by reason of s. 7(2)(j) of the Rules. It is not a reference to the business activity conducted at particular premises. I have found that Discount Cosmetics Clearance Centre, Cubano Facewear and Dorevitch Pathology are not temporary selling points. Nor is the kiosk from which DVD Warehouse operates a temporary selling point.

Ratio Decidendi

Legal Principle Established

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Citations

Wodonga Pharmacy Pty Ltd and Australian Community Pharmacy Authority Annette Walkerden Dipak Sanghvi OTHER PARTIES [2014] AATA 496

Most Recent Citation

Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273

Cases Citing This Decision

Sunlea Enterprises Pty Ltd As Trustee for Drummond Cove Unit Trust and Commissioner of Taxation (Taxation) [2018] AATA 2792
Citation 1 (Para 13)

…aws an adverse inference ( Jones v Dunkel (1959) 101 CLR 298; Re Wodonga Pharmacy Pty Ltd and Australian Community Pharmacy Authority [2014] AATA 496).…
Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273
Citation 2

…] 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 SANGH…

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Cases Cited

Watson v Australian Community Pharmacy Authority [2012] FCAFC 142
Citation 1 (Para 19)

…o appeared on behalf Mr Sanghvi, directed my attention to the Full Court of the Federal Court of Australia (Lander, Jessup and Foster JJ) decision in Watson v Australian Community Pharmacy Authority and Others (2012) 131 ALD 210. Although that case was concerned with the 2006 Australian Community Pharmacy Authority Rules, the Rule at Item 201 of Schedule 2 made a…
Re Lobo and Department of Immigration and Citizenship [2011] AATA 705
Citation 2 (Para 2)

…use of the word likely does not raise its own difficulties. Deputy President SA Forgie in Phillip Lobo and Department of Immigration and Citizenship [2011] AATA 705 canvassed the authorities which had considered the word likely . As her detailed analysis discloses, it is difficult to find consistency and it appea…
Tisdall v Webber [2011] FCAFC 76
Citation 3 (Para 11)

…inferences, it needs to be cautious, as was explained by the Full Court of the Federal Court (Greenwood, Tracey and Buchanan JJ), in Tisdall v Webber (2011) 193 FCR 260. Buchanan JA said, at 297: It is important to bear in mind also that the inferential process is not one where speculation, guesswork or mere assumpti…
St George Bank Ltd v Federal Commissioner of Taxation [2009] FCAFC 62
Citation 4 (Para 16)

…dealt with by the Full Court of the Federal Court of Australia (Emmett, Stone and Perram JJ) in St George Bank Ltd v Federal Commissioner of Taxation (2009) 176 FCR 424 where Stone J said, at 431: The long-standing tension in the construction of statutes (and other legal documents) between giving words their “literal…
Bell IXL Investments Ltd v Life Therapeutics Ltd [2008] FCA 1457
Citation 5 (Para 11)

…necessity that inferences be drawn as matters of legitimate deduction, based on probative values. In Bell IXL Investments Ltd v Life Therapeutics Ltd (2008) 68 ACSR 154 Middleton J said (at [14]): In considering the material before the Court, the trier of fact must be careful to distinguish between inference and conj…
R v Lao [2003] NSWCCA 315
Citation 6 (Para 9)

…d be applied to the circumstances and evidence of this case, it is helpful to state the rule as expressed in more recent times, as did Buchanan JA in R v Lao (2002) 5 VR 129, where his Honour said, at 139: … when a party appears to be able to prove the true facts and fails to do so, in the absence of explanation,…
R v Lao and Nguyen [2002] VSCA 157
Citation 7 (Para 9)

…lied to the circumstances and evidence of this case, it is helpful to state the rule as expressed in more recent times, as did Buchanan JA in R v Lao (2002) 5 VR 129, where his Honour said, at 139: … when a party appears to be able to prove the true facts and fails to do so, in the absence of explanation, an infer…
De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14
Citation 8 (Para 3)

…an CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) in De L v Director General, New South Wales Department of Community Services and Another (1997) 143 ALR 171 at 180 – 181).…
Collector of Customs v AGFA-Gevaert Ltd [1996] HCA 36
Citation 9 (Para 15)

…struction of a phrase. The High Court of Australia (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) in Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 said, at 396 – 397: The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phras…
Poignand v NZI Securities Australia Ltd [1992] FCA 536
Citation 10 (Para 6)

…decision dealing with the Trade Practices Act 1974 , the Federal Court of Australia (Gummow J) in Poignand v NZI Securities Australia Ltd and Others (1992) 37 FCR 363 said, at 371: The phrase ‘likely to’ is susceptible of various meanings, and takes its colour from the statutory context. It may indicate a degree of…
Boughey v the Queen [1986] HCA 29
Citation 11 (Para 4)

…The Tillmanns Butcheries case was referred to by the High Court of Australia in Boughey v The Queen (1986) 161 CLR 10. Gibbs CJ said, at 14: It is trite to say that the meaning of a word will be influenced by the context in which it appears. In my opinion the word ‘likely’ in ss. 156 and 157 of the Criminal Code Act…
McDonald v Director-General of Social Security [1984] FCA 59
Citation 12 (Para 4)

…Such a situation was dealt with by the Full Court of the Federal Court (Woodward, Northrop and Jenkinson JJ) in McDonald v Director-General of Social Security (1984) 6 ALD 6. That case dealt with the cancellation of an invalid pension held by Mr McDonald on the ground that he was not permanently incapacitated for work. The question before the primary…
Perri v Coolangatta Investments Pty Ltd [1982] HCA 29
Citation 13 (Para 17)

…ce with the High Court of Australia (Gibbs CJ, Stephen, Mason, Wilson and Brennan JJ) decision in Perri and Another v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 where Mason J said, at 552: Generally speaking the court will tend to favour that construction which leads to the conclusion that a particular stipul…
R v Australian Broadcasting Tribunal; Ex Parte Hardiman [1980] HCA 13
Citation 14 (Para 10)

…rinciple established by High Court of Australia decision in The Queen v The Australian Broadcasting Tribunal and Others; ex parte Hardiman and Others (1980) 144 CLR 13 where the Court said, at 35 – 36, regarding the Tribunal’s participation in the hearing: In cases of this kind the usual course is for a tribunal to…
Jones v Dunkel [1959] HCA 9
Citation 15 (Para 1)

…there was proper material before the Tribunal to enable it to lawfully determine the matter. The second part was a reliance on the so-called rule in Jones v Dunkel (1959) 101 CLR 298.…
Jones v Dunkel [1959] HCA 8
Citation 16 (Para 1)

…er material before the Tribunal to enable it to lawfully determine the matter. The second part was a reliance on the so-called rule in Jones v Dunkel (1959) 101 CLR 298.…
Luxton v Vines [1952] HCA 19
Citation 17 (Para 11)

…ervations, with respect, state a fundamental principle which is authoritatively established but which is not always observed (see also Luxton v Vines (1952) 85 CLR 352 at 358, quoting Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1).…

Legislation Cited

Administrative Appeals Tribunal Act 1975 (Cth) 3, 33, 33(2A), 37, 40(1A)
6 mentions (from Para 26)
National Health Act 1953 (Cth) 105AD, 90, 99K, 99L
5 mentions (from Para 1)
Acts Interpretation Act 1901 (Cth) 15AA, 46A
3 mentions (from Para 2)

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4297
Re	Wodonga Pharmacy Pty Ltd
APPLICANT
And	Australian Community Pharmacy Authority
RESPONDENT
And	Annette Walkerden Dipak Sanghvi
OTHER PARTIES

Tribunal	Egon Fice, Senior Member
Date	18 July 2014
Place	Melbourne