FEDERAL COURT OF AUSTRALIA

Assarapin v Australian Community Pharmacy Authority [2016] FCAFC 9

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The cross-appeal is dismissed.

3.    Costs are reserved.

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

REASONS FOR JUDGMENT

THE COURT:

1.    THE ISSUES

1    The primary judge dismissed the appellants’ application for judicial review of the grant of approval by the Secretary, Department of Health and Ageing (the Secretary), to the second respondent, Mr Quang Lin, under s 90 of the National Health Act 1953 (Cth) (the Act) and the recommendation preceding that grant. The s 90 approval authorised Mr Lin to supply pharmaceutical benefits from new premises. At the same time, the Secretary cancelled Mr Lin’s earlier approval to supply pharmaceutical benefits from premises located in a building which had comprised part of a shopping centre but had been demolished. The appellants were authorised to dispense pharmaceutical benefits from premises in close proximity to Mr Lin’s new premises.

2    It was common ground that it was a precondition to the grant of approval in this case that the Australian Community Pharmacy Authority (the Authority) recommend that the Secretary grant approval. The appellants contend that the primary judge ought to have held that the recommendation here was based on an error of law or invalid on the ground that the Authority misconstrued a criterion for the recommendation, namely, that “the existing premises are not in a facility”, a “facility” being relevantly here a shopping centre: see s 5 and item 124 of Part 1 of Schedule 1 to the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (the Rules). As a consequence, the appellants contend that the decision to recommend approval and, therefore, the Secretary’s decision to grant approval, should be set aside.

3    By a notice of contention, Mr Lin contends that if, contrary to his submissions, the recommendation was tainted by error of law, the Court should decline to exercise its discretion to grant relief under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). In addition, in his cross-appeal, Mr Lin contends that the primary judge erred in holding that the appellants were persons aggrieved under the ADJR Act or otherwise had standing to seek relief.

4    The Authority and the Secretary entered a submitting appearance save as to costs.

5    We agree with the primary judge that the Authority’s recommendation and the decision to accept that recommendation were not tainted by error of law, being a ground of review under the ADJR Act, nor by jurisdictional error so as to attract relief under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act). Accordingly the appeal must be dismissed and the issue sought to be raised by the notice of contention does not arise. However, as the cross-appeal raises a question as to the jurisdiction of the primary judge to entertain the proceedings, it is necessary to determine the cross-appeal notwithstanding our decision on the appeal. For the reasons given below, we also agree with the primary judge that the appellants had standing under the ADJR Act as persons aggrieved. The cross-appeal must therefore be dismissed.

2.    BACKGROUND AND STATUTORY CONTEXT

2.1    The approved premises at the Westfield Miranda Shopping Centre

6    The facts in the Court below were largely contained in an agreed statement of facts.

7    In about May 2008, Mr Lin purchased a pharmacy business at Shops 2034–2036, Westfield Miranda in New South Wales. He obtained approval pursuant to s 90 of the Act to supply pharmaceutical benefits from those premises (the approved premises). At all relevant times, s 90(1) of the Act provided 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.

8    Mr Lin occupied the approved premises under a licence from the lessee of the premises, GNA (Miranda) Pty Ltd (GNA).

2.2    The application to “deactivate” the approval under s 98 of the Act

9    In early August 2012, Mr Lin was given notice by GNA of its intention to terminate the licence by February/March 2013. Approval under s 90 being specific to the approved premises, it was not in issue that Mr Lin was unable to supply pharmaceutical benefits from other premises absent the grant of separate approval under s 90 to do so.

10    Where, as here, an approved pharmacist ceases to carry on a business as a pharmacist at the approved premises, the Secretary has a discretion to cancel the s 90 approval either on the giving of notice by the pharmacist of the change in circumstances under s 98(2) of the Act, or unilaterally under s 98(3). An approved pharmacist ceases to carry on business as a pharmacist if she or he is not supplying pharmaceutical benefits in the course of carrying on the business (s 98(6)). The discretion conferred by s 98 has commonly been utilised so as to assist an approved pharmacist who wishes temporarily to maintain a s 90 approval notwithstanding that the criteria which enliven the discretion to cancel are met. This has been described as “deactivation”. In Mr Lin’s case, “deactivation” meant that his application for approval with respect to the new premises would be considered by reference to the proximity requirements applying to applications which also involve cancellation of an existing approval, as we later explain.

11    Guidelines which are not binding have been published by Medicare Australia regarding “deactivation” with the intention of ensuring that the discretion under s 98 is exercised in a consistent and appropriate manner by delegates nationally. Specifically, the Guidelines explain that:

...[A]ny approved pharmacist who ceases to carry on business as a pharmacist at the premises in respect of which the pharmacist is approved – subject to these Guidelines (that is, without Medicare Australia’s prior endorsement) – places themselves at immediate risk of having their approval cancelled.

Deactivation is not an expression used or defined in the National Health Act 1953. It is, instead an administrative concept, intended to describe – in a shorthand way – the situation which arises when a Delegate decides not to cancel an approval under s98(3), notwithstanding that the statutory precondition to such a decision (namely, that the holder of an approval under s90 of the National Health Act 1953 has ceased to carry on business as a pharmacist at the premises in respect of which the pharmacist is approved) has been satisfied.

(Emphasis in the original.)

12    The guidelines identified a number of circumstances in which an application to deactivate an approval for a specific period would be considered. These include where the approved pharmacist is unable to open her or his pharmacy for reasons beyond her or his control such as fire, flood or shop renovation, or where the approved pharmacist wishes to relocate to other premises (for which an application for approval has been made) but is unable to continue to carry on business as a pharmacist at the currently approved location for reasons beyond her or his control.

13    By letter dated 26 March 2013, Mr Lin requested permission for the approval in respect of the approved premises to be “deactivated” for a period of six months from 14 April 2013 to allow him to relocate. By letter dated 28 March 2013 on behalf of the Secretary, Mr Lin’s request was granted and his approval was “deactivated” for the period from 14 April 2013 to 14 November 2013.

14    On 14 April 2013, Mr Lin closed his business and vacated the approved premises.

15    The building in which the approved premises had been located was demolished in April or May 2013.

2.3    The application for approval under s 90 of the Act to supply pharmaceutical benefits at the new premises

16    On 15 April 2013, Mr Lin commenced operating a pharmacy business at premises situated at Shop 1, Ground Floor, 589 Kingsway, Miranda, New South Wales (the new premises). However, as he was not then approved to supply pharmaceutical benefits from those premises, he also applied for approval under s 90 of the Act. Approval requires the pharmacist to supply certain drugs at set prices to consumers offset by a Commonwealth subsidy. Specifically, s 87 of the Act controls the amount which an approved pharmacist may charge a person for the supply of a pharmaceutical benefit, while s 99 provides, relevantly, that only an approved pharmacist who has supplied a pharmaceutical benefit is entitled to payment from the Commonwealth in relation to the supply of the pharmaceutical benefit: see also s 85(1) of the Act and clause 8 of the National Health (Pharmaceutical Benefits) (Conditions of approval for approved pharmacists) Determination 2007.

17    A delegate of the Secretary referred Mr Lin’s application first to the Authority in accordance with the requirement to do so under s 90(3A). The Authority is established by s 99J of the Act and its functions, as set out in s 99K(1), 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;

18    All recommendations of the Authority are to be made to the Secretary (s 99K(3)) who, in turn, cannot grant an approval under s 90 unless the Authority has recommended the grant of approval (s 90(3B)). However, where the Authority has recommended the grant, the Secretary has a discretion to refuse to grant approval (s 90(3B)).

19    In making a recommendation, the Authority is required to comply with the relevant rules determined by the Minister under s 99L of the Act. Pursuant to that provision, the Minister made the Rules. The relevant rules are those in force as at the date on which the Authority made its decision to recommend approval, namely, 30 August 2013.

20    Relevantly in this regard, s 10 of the Rules requires the Authority to recommend that an applicant be approved under s 90 of the Act in relation to particular premises where certain criteria in s 10(a) or (b) are met. On the other hand, s 11 of the Rules requires the Authority to recommend that an applicant not be approved under s 90 in relation to particular premises if a requirement under s 10(a) or (b) that applies to the application is not met. Specifically, s 10 of the Rules reads:

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 (the existing approval) that is in force in relation to approved premises (the existing premises):

(i)    the application states that it is one of the kinds mentioned in column 2 of an item in Part 1 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 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; and

(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.

21    In turn, excluding applications made before 16 April 2012, Part 1 of Schedule 1 to the Rules deals with applications involving (as here) the cancellation of an existing approval and provides that:

22    The term “facility” is defined in s 5 of the Rules to mean:

(a)    a small shopping centre; or

(b)    a large shopping centre; or

(c)    a large medical centre; or

(d)    a large private hospital.

23    In turn, s 5 of the Rules defines a “large shopping centre” to mean a group of shops and associated facilities that is under single management that:

(a)    has a gross leasable area of at least 5 000 m2; and

(b)    contains a supermarket that occupies a gross leasable area of at least 1 000 m2; and

(c)    contains at least 50 other commercial establishments; and

(d)    has customer parking facilities.

24    The parties were agreed that the Westfield Miranda Shopping Centre was, at all material times, a “facility” within the meaning of the Rules.

25    In contrast to Part 1 of Schedule 1, Part 2 deals with applications for approval under s 90 which do not involve cancellation of existing approvals. While the criteria specified by Part 2 are different, they also turn upon the proximity of the proposed premises for the pharmacy to other approved premises or, where the proposed premises would be located in a facility, upon the proximity of the proposed pharmacy to other approved pharmacies and/or the number of approved pharmacies at the facility.

26    Mr Lin sought approval in accordance with item 124 of Part 1 of Schedule 1 to the Rules for the purpose of obtaining a recommendation as to whether or not the approval should be given under s 90. The Authority also received comments and supporting documents from what it described as “an interested third party pharmacists’ agent” on 26 August 2013.

2.4    The Authority’s decision to recommend approval and the decision of the Secretary

27    On 30 August 2013, the Authority decided to recommend that Mr Lin’s application be approved. It gave written reasons on 24 September 2013 for its decision in response to a request under s 13 of the ADJR Act.

28    It was not in dispute that when approval was given for Mr Lin to supply pharmaceutical benefits from the approved premises under s 90, those premises were in a facility. However, the Authority found at the time of its decision that “the existing premises are not in a facility” and therefore that the requirement in item 124(2)(a) of the Rules was met. Absent that finding, it was common ground that the requirements prescribed by item 124 would not have been satisfied and the new premises would not otherwise have satisfied the proximity requirements in the Rules because the new premises were not located at least 500m in a straight line from the appellants’ premises (item 124(2)(b)).

29    In finding that item 124(2)(a) was met, the Authority explained that:

26.    The Authority found that the Lessor gave the Lessee notice to vacate shops 2034, 2035, 2036 and 2036B and to quit and deliver up possession of the premises to the Lessor within 12 months of the date of the notice.

…

28.    The Authority found that the existing premises have been demolished and are unavailable for occupation and therefore no longer part of the Westfield Miranda Shopping Centre.

29.    The Authority considered the 10 photographs of the existing premises.

30.    The Authority found that the existing premises have been demolished.

31.    The Authority was satisfied that, based on the Lease between the Lessee and the Lessor, the Deed of Agreement between the Lessee and the Applicant, the letter from the Practice Manager of the Miranda Medical Centre, including the ‘Demolition Notice’ from the Lessor, the letter from the Applicant’s agent and the 10 photographs, the existing premises are not in a facility.

32.    As the Authority was satisfied that the existing premises are not in a facility, it did not go on to consider the distance from the proposed premises to the nearest approved premises.

(Emphasis added.)

30    In a letter to the Authority and referred to at [27] of its reasons, the solicitors for Mr Lin pointed to the difficulties posed in any event in characterising the former premises as being located within the shopping centre as it was in a building “located adjacent to (rather than in) what would reasonably and generally be described as the Westfield Miranda Shopping Centre”. However, the letter submitted that, irrespective of that issue, “there can be no doubt that, even if they were [within the shopping centre prior to demolition], the former premises are no longer located in Westfield Miranda Shopping Centre.”

31    On 9 September 2013 following receipt of the Authority’s recommendation, the Secretary granted an approval to Mr Lin to supply pharmaceutical benefits at the new premises under s 90 of the Act.

3.    CONSIDERATION

3.1    Construction of item 124 of Part 1 of Schedule 1 to the Rules

32    As the primary judge held, the critical finding by the Authority was on a mixed question of fact and law, namely, that the approved premises no longer formed part of a shopping centre and therefore were not in a facility for the purposes of item 124 because they had been demolished and were unavailable for occupation. We also agree that the Authority did not hold that merely because the approved premises were demolished, it followed that they could not be within the shopping centre (reasons below at [35]). While the Authority’s reasons could have benefited from greater elaboration, it can fairly be inferred as did the primary judge, that the Authority applied the definition of “shopping centre” given, among other things, that the definition was attached to the Authority’s statement of reasons.

33    The appellants initially contended in their written submissions that the effect of “deactivating” Mr Lin’s s 90 approval with respect to his existing premises under s 98(2) was to preserve the status quo as at the time of “deactivation” in relation to the second respondent’s existing approval for that period (see also grounds 1, 2 and 3, notice of appeal). As a consequence, the appellants submitted that, while the Rules must be applied as at the time of decision, the Authority must be satisfied that at the time of “deactivation” the requirement that the “existing premises are not in a facility” in item 124 was met. However, that argument had, with respect, little to commend it and was rightly abandoned at the hearing of the appeal.

34    At the hearing, counsel for the appellants contended instead that the term “existing premises” in item 124 must be read as the premises subject to an existing approval in line with the definition of that phrase in s 10 of the Rules. As earlier mentioned, it was not in dispute that those premises, at the time of approval, were within a facility. As a consequence, the appellants submitted that the Authority wrongly held that the existing premises so defined were not within a facility because that part of the facility where the premises were located had subsequently been demolished. It was the approval which was said to be important; the fact of demolition was irrelevant. As the primary judge held at [37], it is implicit in this submission that if the approved premises were within a shopping centre when the s 90 approval was granted, they must be taken to remain within a shopping centre for the purposes of determining any later application for approval under item 124 of the Rules, subject to the qualification by the appellants that there remained a shopping centre in existence. Save, however, for that qualification, the appellants’ argument appears to be the same as that summarised by the primary judge at [32]-[33] of his reasons notwithstanding that ground 3 of the notice of appeal alleges that the primary judge erred in attributing that argument to the appellants.

35    The starting point in any task of statutory construction is the text of the provision which must be considered in its context including the statutory purpose: Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at 671–672 [22]-[23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ). As to the latter, their Honours explained in Thiess that:

Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that “the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated …) is to be preferred to each other interpretation” is in that respect a particular statutory reflection of a general systemic principle. For:

“it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” [Cabell v Markham (1945) 148 F (2d) 737 at 739, quoted in Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 644 [27]]

36    First, both parties correctly, in our view, accepted that s 10 of the Rules defines “existing premises” to mean premises that are the subject of an approval which is in force and that the term was intended to bear the same meaning in item 124. It follows that, read in context, there may be “existing premises” notwithstanding that premises in the ordinary meaning of the word no longer exist, namely, a building or a building with the grounds belonging to it (see e.g. the definitions of “premises” in the Oxford Dictionary (online ed, at 12 January 2015) and Macquarie Dictionary (online ed, at 12 January 2015)). As the appellants submitted, “the fact that [the premises] have been demolished doesn’t matter because while the approval remains on foot, they continue to be approved premises, albeit, no longer accessible.”

37    Secondly, item 124 poses a question in the present tense, namely, whether the existing premises so defined “are” in a facility. As such, on its natural and ordinary meaning, item 124 directs the Authority to decide whether the criterion is met at the time of its decision and not on the basis of where the premises were located at the time that the original approval was given or any other time. In this regard, the words actually used by the legislature are the surest guide to legislative intent: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ). As the primary judge held at [37], if the intention had been for item 124 to bear the meaning for which the appellants contend, it would have been a simple matter for the legislator to have avoided the use of the present tense and prescribed instead, for example, a criterion that “the existing premises were not in a facility at the time approval was granted”.

38    Thirdly, the appellants submitted that there was an illogicality in the second respondent’s submission that the Authority had to have regard to the fact that the premises had been demolished. As counsel for the appellants submitted:

…if the respondent is correct in saying that demolishing a premises means there are no existing premises, then it’s very difficult to see how the applicant… for an approval can make any of these applications under part 1, because on his own argument he doesn’t have an existing approval, because he has no premises and one has to have premises in order to have an approval.

39    However, the premise for this submission is not made out as the second respondent accepts the appellants’ construction of “existing premises”. More fundamentally, it is not correct to say that the existence of premises in the sense of a building is essential to maintain approval under the Act. In this regard, it is true that the Secretary cannot grant approval under s 90 if she or he is satisfied that on or after the day on which the approval is granted, the pharmacist would be unable to supply pharmaceutical benefits at the premises (s 90(3D)). However, s 98 envisages that the Secretary may decide not to cancel an approval even though the pharmacist has ceased to carry on business as a pharmacist at the approved premises and therefore notwithstanding that the criteria for a grant of approval would not be met. Thus, as the appellants accepted, the Secretary might exercise the discretion not to cancel under s 98(2) in order, for example, to enable a pharmacist to re-establish or relocate her or his business after the premises in which the pharmacy was located were destroyed or damaged in a natural disaster without losing her or his s 90 approval with respect to those premises in the interim. The construction of “existing premises” in item 124 which both parties accept, and with which we agree, is therefore consistent with the scheme of the Act.

40    That being so, while premises in the ordinary sense may no longer physically exist, the approval which is still in existence nonetheless relates to a physical location and an assessment can be made of whether that physical location is or is not within a facility. In this regard, as the second respondent contends, the approval for which s 90 makes provision is an approval to supply pharmaceutical benefits from premises simpliciter, and not from premises in a facility or shopping centre. It follows, in our view, that there is no illogicality in the proposition that an assessment can be made of whether “existing premises” as defined are located within a facility despite the fact that the premises and the building in which they were contained have been wholly demolished.

41    In the fourth place, the focus in the requirements prescribed by the Rules upon the proximity of a proposed approved pharmacy to other approved pharmacies further supports the primary judge’s construction of item 124. The origin of the proximity requirements lies in amendments made to the Act by the Community Services and Health Legislation Amendment Act 1990 (Cth) (the 1990 Amendments). Those amendments were directed to reducing the number of existing pharmacies and regulating the approval of new pharmacies so as to reduce the cost of dispensing prescriptions by increasing the average output per pharmacy with consequential savings for the Commonwealth: Pharmacy Restructuring Authority v Chatfield (1993) 43 FCR 418 (Chatfield) at 420 (Davies and Lee JJ); see also at 433-434 (French J). As the Full Court held in Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589 (Martin) at 597:

The relevant provisions are not concerned with minimising competition in the pharmaceutical industry but with reducing the Commonwealth’s financial burden in providing pharmaceutical benefits while maintaining an acceptable level of community service.

42    Thus an agreement in December 1990 between the Minister for Aged, Family and Health Services and the Pharmacy Guild of Australia provided in line with these goals that, subject to “guidelines” issued under the Act not being disallowed, the Authority would consider applications for approval based on “guidelines” imposing restrictions on the proximity of new approvals (Martin at 594-595). The first such Determination was made on 9 January 1991 (Martin at 595). (We note that, while described initially as guidelines, nonetheless they were binding upon the Authority in making recommendations, as are the current Rules: Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287; Chatfield at 421 (Davies and Lee JJ) and 436 (French J)).

43    The same goals are evident in The Fifth Community Pharmacy Agreement between The Commonwealth and The Pharmacy Guild of Australia dated 3 May 2010 (the 2010 Agreement) which preceded the making of the Rules applicable to this case. In common with the earlier such agreements, the 2010 Agreement sets out, for the purposes of s 98BAA of the Act, the parties’ agreement in relation to the manner in which the Commonwealth price is to be ascertained for the purposes of payments to approved pharmacists in respect of the supply by them of pharmaceutical benefits. In particular, clause 1(d) states that the principles and objectives of the Agreement include to:

i.    ensure a fair Commonwealth price is paid to Approved Pharmacists for providing pharmaceutical benefits while maximising the value to taxpayers by encouraging an effective and efficient community pharmacy network;

…

vi.    ensure the Location Rules work for the benefit of the Australian community including increased access to community pharmacies for the population of rural and remote areas. The specific objectives of the Location Rules are to ensure:

•    all Australians have access to PBS medicine;

•    a commercially viable and sustainable network of community pharmacies dispensing PBS medicines;

•    improved efficiency through increased competition between pharmacies;

•    improved flexibility to respond to the community need for pharmacy services;

•    increased local access to community pharmacies for persons in rural and remote regions of Australia; and

•    continued development of an effective efficient and well-distributed community pharmacy network in Australia.

44    The reference in clause 1(d) to the “Location Rules” is a reference to the Rules determined by the Minister under s 99L of the Act (clause 2.1, 2010 Agreement).

45    The achievement of the objects evident in the 1990 Amendments and underpinning the centrality of proximity and/or location in a facility in the Rules strongly suggests in our view that the criteria prescribed by Schedule 1, including item 124, were intended to be applied at the time that the Authority makes its recommendation rather than on the basis of circumstances which no longer pertain.

46    Finally, it is true that in a particular case this construction may mean that the Authority is bound to recommend that a proposed pharmacy which is not in a facility be approved at premises which are, for example, immediately adjacent to another approved pharmacy and that this construction might thereby appear to undermine the object of the proximity rules. However, in our view, the Parliament provided for such possibilities to be addressed by the Secretary in the exercise of discretion under s 90 as to whether or not to approve the application notwithstanding a recommendation.

47    It follows in our view that the Authority was correct to ask whether the “existing premises” were not in a facility for the purposes of item 124 at the time that it made its decision. The Authority’s finding that the premises were no longer in a shopping centre and therefore not in a facility was open on the evidence before it, if not inevitable. In this regard, we emphasise that what was critical was the complete demolition of the premises and that they were incapable of occupation. This was not merely a case where, for example, the walls of the shop where the approved pharmacy had previously been located had been removed but the premises remained within the physical confines of a shopping centre as defined by the Rules.

3.2    The cross-appeal: standing to make the application for judicial review

48    Mr Lin filed a notice of objection to competency in the Court below asserting that the appellants were not persons aggrieved by the Authority’s decision. Rather, as explained by the primary judge, the assumption underlying Mr Lin’s submissions was that it was necessary for the appellants to demonstrate that it was more likely than not that she or he would be financially worse off as a result of the grant of approval to Mr Lin to supply pharmaceutical benefits at the new premises (reasons below at [43]). The primary judge rejected that contention, holding that each of the appellants was a person aggrieved by the Authority’s decision to recommend that Mr Lin’s application under s 90 of the Act be approved.

49    Section 5 of the ADJR Act empowers “a person who is aggrieved” by a decision to which that Act applies to apply to the Court for an order of review in respect of the decision. Section 3(4) of the ADJR Act provides relevantly that:

In this Act:

(a)     a reference to a person aggrieved by a decision includes a reference:

(i)     to a person whose interests are adversely affected by the decision; or

(ii)     in the case of a decision by way of the making of a report or recommendation—to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and

(b)     a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.

50    In our view the primary judge was plainly correct to hold that Mr Lin’s submissions reflected an inappropriately narrow view of the term “person aggrieved” in, relevantly, ss 3(4) and 5 of the ADJR Act. As, for example Lockhart J said in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 65-66 (quoted also by the primary judge below):

The meaning of “a person aggrieved” is not encased in any technical rules; much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public.

The applicant’s interest must not be remote, indirect or fanciful. The interest must be above that of an ordinary member of the public and must not be that of a mere intermeddler or busybody. The ADJR Act has selected in ss 5 and 6 as its criterion for standing the expression “a person aggrieved”. The word “interest” is not used in ss 3 and 5. The term a “person aggrieved” is not a restrictive one; it is of very wide import.

Plainly the applicant need not have a legal, financial or proprietary interest in the subject matter of the proceeding. The applicant must establish that he is a person who has a complaint or grievance which he will suffer as a consequence of the decision beyond that of an ordinary member of the public.

In order that an applicant may show that he is a person “aggrieved”, the element of “grievance” must be special to the applicant. He must suffer more greatly or in a different way than other members of the community. It is to be noted that the definition of “a person aggrieved” by a decision [ie. in s 3(4)] is inclusive of a person whose interests are adversely affected by the decision. It is not exhaustive and the extent of its ambit will depend on the interpretation that the courts place on the expression in the light of the “intention to be gathered from the provision as a whole” …

(Citations omitted.)

See also e.g. Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437-438 (Ellicott J).

51    It is plain that the appellants’ interests exceeded, and were different from, those of an ordinary member of the public. As Mr Lin accepted, the appellants are pharmacists who supply pharmaceutical benefits at premises located within 500 metres by a straight line from Mr Lin’s new premises and within 500 metres of the approved premises. As such, if the existing premises were within a facility, the proximity of the new premises to the appellants’ premises outside the facility would preclude approval of the application to supply pharmaceutical benefits by virtue of item 124(2)(b). As such, the very rules which the appellants seek to enforce assume that their interests may be adversely affected by the grant of an approval with respect to the new premises.

52    This conclusion is supported by the decision in Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 (Pharmacy Guild), as the primary judge held. In that case, the second to fifth applicants were approved pharmacists within 2 km of the proposed pharmacy. Paragraph 6(c) of the Rules then in force provided that approval must be recommended if the proposed premises were not less than 2 kilometres from the nearest other approved premises. After referring to the purpose of the 1990 Amendments as articulated by the Full Court in Martin (and quoted above at [41]), her Honour continued at 473:

The means by which the above objective was to be achieved is revealed by cl 3 of the [1995] agreement [between the Pharmacy Guild and the Minister for Human Services and Health]. Such means involve the maintenance of the benefits of restructuring in the pharmaceutical industry and the enhancement of the development of “an effective, efficient and well distributed community pharmacy service in Australia”.

It seems to me that the second to fifth applicants have, by reason of par 6(c) of the determination, an interest which rises above that of an ordinary member of the public in the development and maintenance of “an effective, efficient and well-distributed community pharmacy service” in that small portion of Australia in the near vicinity of the [proposed] premises. Their interest is, in my view, an interest which is relevant to the process which the Act establishes and to the decision here challenged, and it is not in conflict with the interests which the Act promotes…

53    The same objectives are also revealed by the 2010 Agreement and her Honour’s words are, in our view, equally apt to describe the relevance of the appellants’ interests here to the process established by the Act.

54    While counsel for Mr Lin emphasised that certain of the applicants in Pharmacy Guild led evidence that they had suffered commercial harm by reason of the decisions of which review was sought, it is equally clear from the passages to which we have referred that her Honour did not decide the issue of standing by reference to that evidence. It follows, contrary to Mr Lin’s submissions, that the decision does not lend any support to the proposition that it was necessary for evidence of financial loss to be led by the appellants in order to establish that they were persons aggrieved for the purposes of the ADJR Act. Rather the decision is entirely supportive of the approach adopted by the primary judge with which we concur.

4.    CONCLUSION

55    It follows that the appeal and the cross-appeal must be dismissed. We would reserve the question of costs in order to allow the parties the opportunity to make submissions, should they be so advised. However, we would indicate that we are tentatively of the view that Mr Lin should receive 80% only of his costs as he was not successful on his cross-appeal.

Associate:

Dated:    3 February 2016