Big Country Developments Pty Ltd v Australian Community Pharmacy Authority & Ors [1995] FCA 835

CATCHWORDS

ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Act, 1977 ("AD(JR) Act") - person "aggrieved" - application by pharmacist under lease about to expire of shop in shopping centre owned by applicant in these proceedings to Secretary, Department of Human Services and Health for Secretary's approval under s 90 of National Health Act 1953 ("the Act") of his relocation of pharmacy to a shopping centre approximately one kilometre away - Australian Community Pharmacy Authority recommends approval - effect of relocation that pharmacist would not renew lease of shop in applicant's shopping centre, that there would be no pharmacy in that shopping centre and that applicant would suffer commercially - applicant asserting to Authority that pharmacist not entitled as of right to approval because new site is more than one kilometre from existing site so that terms of Determination under the Act not satisfied - pharmacist making representations to Authority to contrary - whether applicant's commercial interest in having pharmacist take further lease of shop and in having pharmacy in shopping centre qualifies it as a person "aggrieved" by Authority's recommendation to Secretary - whether Authority's responses to applicant's submissions in respect of method of measuring distance between the two sites has "involved" applicant in procedures antecedent to Authority's decision as to recommendation to be made, so as to qualify applicant as a person "aggrieved" under AD(JR) Act.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3 (4), 5 (1).

National Health Act 1953 (Cth), ss 89, 90, 98, 99K, 99L.

Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 (FC).

Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589 (FC).

Loveridge v Pharmacy Restructuring Authority, unreported, FCA/Whitlam J, 23 August 1995.

BIG COUNTRY DEVELOPMENTS PTY LIMITED v AUSTRALIAN COMMUNITY PHARMACY AUTHORITY & ORS

No NG 713 of 1995

Lindgren J

Perth

17 October 1995

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No NG 713 of 1995

GENERAL DIVISION )

BETWEEN:

BIG COUNTRY DEVELOPMENTS PTY LIMITED

Applicant

AND:

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

First Respondent

THE SECRETARY, DEPARTMENT OF HUMAN SERVICES AND HEALTH

Second Respondent

DONALD EDWARD McLEOD

Third Respondent

CORAM: Lindgren J

PLACE: Perth

DATE: 17 October 1995

MINUTE OF ORDERS

THE COURT ORDERS:

1. THAT the following question be decided separately from any other question in the proceedings:

Question:Is the applicant a person "aggrieved" by the decision of the first respondent on 5 September 1995 to recommend to the second respondent approval of the third respondent's application for approval of him under s 90 of the National Health Act 1953 (Cth) for the purpose of supplying pharmaceutical benefits at or from premises being shop T14 Eaglevale Market Place, Gould Road, Eaglevale?

2. THAT the question ordered in Order 1 to be separately decided be answered: No

3. THAT the application be dismissed as against the first and second respondents.

4. THAT the applicant pay the costs of the first and second respondents.

5. THAT the application be dismissed as against the third respondent in so far as it seeks the relief referred to in paras 1 - 4 of the application.

6. THAT the applicant pay the third respondent's costs of the question ordered to be separately decided.

7. THAT the proceedings as between the applicant and the third respondent be stood over to 25 October 1995 at 9.30 am before Lindgren J for directions.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No NG 713 of 1995

GENERAL DIVISION )

BETWEEN:

BIG COUNTRY DEVELOPMENTS PTY LIMITED

Applicant

AND:

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

First Respondent

THE SECRETARY, DEPARTMENT OF HUMAN SERVICES AND HEALTH

Second Respondent

DONALD EDWARD McLEOD

Third Respondent

CORAM: Lindgren J

PLACE: Perth

DATE: 17 October 1995

REASONS FOR JUDGMENT

NATURE OF PROCEEDINGS

The applicant ("Big Country") applies under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the AD(JR) Act") for an order of review of a decision of the first respondent ("the Authority") and a decision of the second respondent ("the Secretary"). The Authority's decision to which the application refers is in the nature of a recommendation dated 5 September 1995 to the Secretary to make a certain decision. The Secretary has not yet accepted and acted on that recommendation although the application, by referring to the Secretary's decision, assumes that he has. The Secretary did not seek dismissal of the application in limine on the ground
that he has not yet taken a decision in response to the Authority's recommendation.

The Authority and the Secretary, by a notice of objection to competency, contend that the applicant is not a person "aggrieved" by the Authority's recommendation for the purposes of the AD(JR) Act. The third respondent ("Mr McLeod") has filed a notice of motion seeking an order that Big Country's application for an order of review be dismissed either in its entirety or in so far as it claims the relief sought in paras 1, 2, 3, and 4 of the application. Those paragraphs are all the paragraphs in the application which seek relief under the AD(JR) Act. The only ground on which the Authority and the Secretary seek a dismissal is that Big Country is not a person "aggrieved".

The objection to competency and the application for summary dismissal came before me as Duty Judge for hearing on 3 October 1995. The urgency touching the proceedings arises from the fact that Mr McLeod is the lessee from Big Country of certain pharmacy premises under a lease which is to expire on 23 November 1995. Both parties need to know soon whether Mr McLeod will relocate his pharmacy business pursuant to an approval to be granted by the Secretary (see later).

The parties joined in asking that I determine separately the question of Big Country's locus standi under the AD(JR) Act. Mr McLeod did not submit that I should reach a conclusion in his favour merely on the basis, if it should prove to be the case, that I was not satisfied that the stringent test applicable to applications for summary dismissal had been met by Big Country; cf Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 (Dixon J); General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (Barwick CJ) at 129; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 93; Webster v Lampard (1993) 177 CLR 598 at 602 (Mason CJ, Deane and Dawson JJ), 618-619 (Toohey J). The parties said that although there would be objections to the admissibility of some of the affidavit material, there was not otherwise any factual issue to be resolved. I agreed to determine the question of Big Country's standing under the AD(JR) Act as a preliminary issue. I shall order that the following question be decided separately from any other question in the proceedings:

"Is the applicant a person 'aggrieved' by the decision of the first respondent on 5 September 1995 to recommend to the second respondent approval of the third respondent's application for approval of him under s 90 of the National Health Act (1953) (Cth) for the purpose of supplying pharmaceutical benefits at or from premises being shop T14 Eaglevale Market Place, Gould Road, Eaglevale?"

I note that it is agreed that the answer is to determine the fate of Mr McLeod's motion for summary dismissal.

FACTS

The applicant owns the Raby Shopping Centre at the corner of Spitfire and Hurricane Drives, Raby, a suburb of Sydney ("the Raby Centre"). By a lease bearing date 17 August 1990, Big Country granted a lease of shop 11A in the Raby Centre ("shop 11A") to Mr McLeod for a term of six years commencing on 24 November 1989 and terminating on 23 November 1995. The lease was expressed to be subject to, inter alia, the covenants and provisions set forth in an earlier lease of shop 11A registered number X667017. That earlier lease adopted, subject to amendments, the provisions of registered memorandum R477653. One effect of this is that shop 11A may be used by Mr McLeod only as a pharmacy.

Mr McLeod carries on business as a pharmacist at shop 11A in respect of which he is approved under s 90 of the National Health Act 1953 (Cth) ("the Act") (see later). He desires, upon expiry of his lease of shop 11A on 23 November 1995, to cease business there and to establish a pharmacy business at shop T14 in a newly established shopping centre called the Eaglevale Market Place, Gould Road, Eaglevale (I will call shop T14 simply "Eaglevale").

Section 89 of the Act provides that a person is not entitled to receive a "pharmaceutical benefit" (a drug or medicinal preparation in relation to which Part VII of the Act applies) unless it is supplied by a pharmacist approved, and at or from premises approved, under the Act. Section 90 empowers the Secretary to approve of pharmacists for the purpose of the supply of pharmaceutical benefits from particular premises. Section 98 provides that whenever an approved pharmacist requests that an approval under s 90 be cancelled, the Secretary shall cancel it. If Mr McLeod is to relocate from shop 11A to Eaglevale, it is necessary that he be approved for the purpose of supplying pharmaceutical benefits at or from Eaglevale and that the existing approval of him in respect of shop 11A be cancelled. He has applied to the Secretary for such approval of him in respect of Eaglevale and, subject to and in association with the granting of such approval, for the cancellation of his existing approval in respect of shop 11A.

On 8 September 1995 the Pharmaceutical Benefits Branch of the Health Insurance Commission wrote to Mr McLeod a letter containing, inter alia, the following:

"I refer to your application for approval to supply pharmaceutical benefits in respect of premises situated at Shop T14 Eaglevale Market Place, Gould Road, Eaglevale, 2558. The application was considered by the Australian Community Pharmacy Authority on 5 September 1995 and approval was recommended.

..................................................

You are reminded that before approval can be granted by the delegate of the Secretary to the Department of Human Services and Health, it must be ascertained that your application meets the requirements of the Pharmacy Board of New South Wales.

..................................................."

The case has been fought on the basis that if for any reason approval is not granted by the Secretary in accordance with this recommendation, Mr McLeod can be expected to continue, at least for the time being, to practise as a pharmacist in shop 11A as a tenant of Big Country.

Big Country asserts that if approval is granted, Mr McLeod's relocation from the Raby Centre to Eaglevale will cause it substantial financial harm. Peter Herman Hesky, a director of Big Country, has sworn an affidavit as to the commercial importance to Big Country of having a pharmacy in shop 11A. I will give only an outline of Mr Hesky's evidence because the hearing was conducted on the basis that even if Mr McLeod's relocation would cause Big Country substantial financial harm, nonetheless Big Country is not a person "aggrieved" for the purposes of the AD(JR) Act.

Mr Hesky, whose experience and qualification to give the following evidence were not in question, said that the presence of a pharmacy in a shopping centre is of particular importance because it has a propensity to attract customers who need to have prescriptions filled and who will do other shopping in the shopping centre, and a propensity to attract or sustain a medical practice which will in turn also attract customers to the shopping centre; that shop 11A is a purpose-built pharmacy which Big Country constructed in or about 1984 for a pharmacist who sold the business to Mr McLeod; that it would be almost impossible to find a non-pharmacy tenant prepared to occupy shop 11A; that if a pharmacy business ceases to be carried on in shop 11A a doctor who presently practises at a surgery in the Raby Centre will reconsider his decision to sign a further six year lease as from 23 November 1995 (apparently all leases in the Raby Centre expire on that date) and will, for the time being, become a month to month tenant; that if the doctor leaves the Raby Centre, it would be extremely difficult to re-let the surgery occupied by him to another doctor in the absence of a pharmacy; that the doctor's surgery is purpose built and that it is not possible to re-let it to any other kind of tenant; that without a pharmacy, the Raby Centre would not be able to offer "one stop shopping" and that this would have a significant impact on its commercial viability; and that the loss of the pharmacy may have a considerable impact on the rental income of the remaining tenants.

PART VII OF THE ACT AND ITS ADMINISTRATION

Part VII (ss 83-105AD) of the Act deals with "PHARMACEUTICAL BENEFITS". Division 2 (ss 85-98AA) is headed "Supply of Pharmaceutical Benefits". The description of "pharmaceutical benefits" and the provisions of ss 89, 90 and 98 were noted earlier.

Division 4B (ss 99H-99ZG) was amended by the National Health Amendment Act 1995. It was previously headed "Pharmacy Restructuring Authority" but the amending Act changed the name of that body (and the heading of Division 4B) to the name of the Authority, that is, "Australian Community Pharmacy Authority". The functions of the Authority include the consideration of various applications for which Part VII provides and the making of recommendations to the Secretary. For example, under paras 99K (1) (a) and (b), a function of the Authority is to consider applications under s 90 and to recommend to the Secretary whether or not an applicant should be approved under that section in respect of particular premises. Sub-section 99K (2) provides that in making a recommendation under sub-s 99K (1) the Authority must comply with relevant rules determined by the Minister under s 99L. Sub-section 99L (1) provides that the Minister must determine in writing the rules subject to which the Authority is to make recommendations under sub-s 99K (1).

On 24 April 1995 two agreements in writing were entered into between The Honourable Carmen Lawrence, Minister for Human Services and Health on behalf of the Commonwealth, and the Pharmacy Guild of Australia. I was referred to the second of these. That agreement recited that it was the parties' intention that the terms of the agreement would

"maintain the benefits of restructuring and continue to enhance the development of an effective, efficient and well-distributed community pharmacy service in Australia."

By the agreement, the Minister undertook to include certain matters identified in it in her determination under sub-s 99L (1) of the rules in respect of, inter alia, the granting of approvals under s 90 of the Act.

The Minister made a determination under sub-s 99L (1) dated 2 May 1995 (No PB 6 of 1995) which was published in the Commonwealth of Australia Gazette No GN 18 dated 10 May 1995 ("the Determination"). Rules 3-9 deal with the granting of approvals under s 90. Rule 4 provides that the Authority must not recommend approval except as provided for in Rules 5-8. Relevantly, Rule 5 provides that the Authority must recommend approval if the premises are at least two kilometres from the nearest other premises approved under s 90 and the Authority is satisfied that there is a definite community need for pharmaceutical services in the area in which those premises are situated. Shop 11A and Eaglevale are less than two kilometres from each other. In effect, so long as Mr McLeod continues in shop 11A, a pharmacy will not be recommended for approval for the Eaglevale Market Place, and if his relocation to Eaglevale is approved, a "replacement" pharmacy will not be recommended for approval for shop 11A or, for that matter, for any other premises within the Raby Centre.

Rules 6 and 7 address the situation in which a pharmacist, already approved, applies for an approval in respect of other premises on the basis that before the grant of it he will cease supplying pharmaceutical benefits from the premises the subject of his existing approval. It is convenient to refer to these as "relocation" cases. Sub-rule 6 (a) of the Determination provides, relevantly, that approval must be recommended if:

"(a)the premises in respect of which approval is sought are situated not more than 1 kilometre

measured door to door by the shortest lawful access route, from the premises in respect of which the pharmacist is currently approved; ..."

Sub-rules 6 (b) and (c) provide for the situations where the distance between the two premises is "not more than two kilometres" (6 (b)) and "not less than two kilometres", (6 (c)) respectively. In such cases the Authority must recommend approval only if the conditions set out in those respective paragraphs are satisfied.

It was not submitted that Rules 7, 8 and 9 of the Determination are relevant to the facts of this case and I will not give an account of them.

Eaglevale is either just under or just over one kilometre away from shop 11A. If it is just under, sub-r 6 (a) obliges the Authority to recommend approval of the relocation without further inquiry. If it is just over, the Authority must not recommend approval unless Mr McLeod satisfies additional conditions. So far as the evidence reveals, the additional conditions are not satisfied in the present case but this is not an issue before me and I will say no more of it. Mr McLeod has contended that he is entitled to the benefit of sub-r 6 (a) and Big Country has contended that he is not.

The issue which has given rise to this controversy is whether the distance between shop 11A and Eaglevale, properly measured, is or is not more than one kilometre. Big Country has contended that survey evidence shows that Eaglevale is more than one kilometre away from shop 11A. Mr McLeod contends that survey evidence shows to the contrary. They have furnished to the Authority the survey evidence on which they respectively rely. Perhaps not unnaturally, the Authority has replied to them both. The significance of this, for present purposes, is that Big Country submits that one basis on which it has locus standi is that it has been involved by the Authority in its decision making process. I deal with this submission later.

ISSUES AND OUTLINE OF PARTIES' SUBMISSIONS

Sub-section 5 (1) of the AD(JR) Act provides that a person who is "aggrieved" by a decision to which that Act applies may apply to the Court for an order of review in respect of the decision on any one or more of the grounds stated in the sub-section. It is not in issue that the Authority's decision on 5 September 1995 to recommend to the Secretary approval of Mr McLeod as a pharmacist in respect of Eaglevale is a decision to which the AD(JR) Act applies. Similarly, it is not in issue that any decision to be taken by the Secretary to grant that approval would be a decision to which the AD(JR) Act applies.

Sub-section 3 (4) of the AD(JR) Act provides, relevantly, as follows:

"3(4)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 ... recommendation - to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the ... recommendation; ... "

In its application Big Country claims to be "aggrieved" by the decision (by way of recommendation) and the supposed decision of the Secretary (see earlier), because:

"1. It is the landlord of the premises from which the Third Respondent intends to move;

2. Its interests are adversely affected by the said decisions."

The primary issue posed by the present case is whether, on the facts, Big Country is a person who is aggrieved by the Authority's decision to recommend approval of Mr McLeod's application because its commercial interests would be adversely affected if the Secretary were to grant that approval in accordance with the Authority's recommendation. A secondary issue is whether Big Country acquired an "interest" and became a person "aggrieved" for the purposes of the AD(JR) Act as a result of the course of correspondence between its solicitors and the Authority.

It is convenient to outline the parties' submissions in the following sequence although this does not reflect the order in which they were made.

Big Country submits that as owner of the Raby Centre it has a commercial interest which would be directly affected in an adverse way by the Secretary's approval of Mr McLeod's application by reason of the consequential loss of a pharmacy at the Raby Centre and that this gives it standing under the AD(JR) Act. It submits further that the evidence shows that it was involved by the Authority in its decision-making process in relation to the issue of the true distance between shop 11A and Eaglevale, and that by reason of this also it has an "interest" for the purpose of founding its status as a "person aggrieved" for the purposes of the AD(JR) Act.

Mr McLeod submits as follows:

1. It is not all "ripples of affection" which give rise to an "interest" for the purposes of the AD(JR) Act (the expression comes from the judgment of Brennan J in Re McHattan and Collector of Customs (NSW) (1977) 18 ALR 154 at 157).

2. In order to qualify for the purposes of the AD(JR) Act, a particular "interest" affected must be one which falls within the "zone of interests" contemplated by the enactment under which the decision impugned was made.

3. Whether a particular interest satisfies this test depends on the statutory scheme reflected in the particular statute, its scope and purpose (reference was made to Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 (FC) ("Alphapharm") at 260 (Davies J)).

4. Standing is related to procedural fairness and Big Country was not entitled to be given an opportunity to be heard (reference was made to Alphapharm at 260 (Davies J) and Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589 (FC) at 597).

5. In the present case, the Act is "dominated by public interest concerns" (reference was made to Alphapharm at 261 (Davies J)).

6. The motive of a plaintiff/applicant is irrelevant (reference was made to Alphapharm at 262-3 (Davies J)).

7. Big Country's interests would not be affected by the Secretary's granting of approval but by the effects of such a grant (reference was made to Alphapharm at 259 (Davies J), 271 (Gummow J)).

Mr McLeod further submits that the replies which the Authority made to submissions made to it by Big Country through its solicitors on the question of the distance between shop 11A and Eaglevale does not give it standing.

The Authority and the Secretary adopted the submissions made by Mr McLeod. They also submitted specifically that the distance issue raises a simple question of fact which the Determination requires the Authority to resolve and that these circumstances do not activate any principle which might accord standing by reason of a decision-maker's having recognised a person in its decision-making process.

In reply, Big Country submits that Mr McLeod's submissions misconceive the "scope of the enactment" limitation. According to Big Country, that limitation applies only where the interest propounded is not a proprietary, legal, equitable or commercial one.

REASONING

Big Country's commercial interests

Big Country's case on the question of standing is not that there is in force a contract between it and Mr McLeod obliging Mr McLeod to take a new lease of shop 11A after the expiry of the existing lease on 23 November. Similarly, the interest relied upon is not a proprietary one. Nor would the granting of approval by the Secretary or Mr McLeod's relocation of his pharmacy after 23 November constitute an infringement of any other right of Big Country's.

Big Country's interest is appropriately described as its commercial interest in maintaining the probability that Mr McLeod will, for the time being at least, continue after 23 November 1995 as tenant of shop 11A in Big Country's shopping centre, and that, in consequence, for the foreseeable future there will continue to be a pharmacy in the Raby Centre and none at the Eaglevale Market Place, a shopping centre approximately one kilometre away.

The "ripples of affection", in financial or commercial terms, arising from administrative decisions extend far and wide, and it is unthinkable that Parliament intended by sub-ss 5 (1) and 3 (4) of the AD(JR) Act to accord standing to every person who has a financial or commercial interest which is adversely affected by a decision, no matter how "remote" that interest may be from the decision making activity and no matter how minor the affection. The present case provides an illustration. The Secretary's decision will or may affect, to varying extents, the commercial or financial interests of persons in addition to Big Country. If the Secretary's approval is not forthcoming, the commercial interests of the proprietor of the Eaglevale Market Place will be adversely affected: it will not have Mr McLeod as its tenant and, for as long as he or a successor of his practises as a pharmacist in shop 11A, it will not have any pharmacist as its tenant because the Eaglevale Market Place is less than two kilometres from the Raby Centre (I assume no change in the rules contained in the Determination). It seems that the financial interests of the doctor whose surgery is in the Raby Centre will be adversely affected if the approval is granted. It may be that tenants within both the Raby Centre and Eaglevale Market Place will suffer commercially if the approval is granted or is not granted respectively. Finally, relocation of Mr McLeod's pharmacy would, no doubt, have some financial effects, for better or for worse, on his existing staff and customers in terms of travel costs. A decision not to grant approval might also be seen to have an adverse financial effect on those potential customers who would find it less expensive to travel to Eaglevale than to travel to the pharmacy or pharmacies where they buy their pharmaceutical requirements at present.

I mention these matters only to suggest the impracticality of a notion that any financial interest adversely affected falls within sub-s 3 (4) of the AD(JR) Act. Parliament cannot have intended the AD(JR) Act to operate in this way.

The remedial provisions of the AD(JR) Act have much work to do: they are applicable to a wide variety of administrative decisions under diverse enactments. Such broad notions as "person aggrieved" and "interests adversely affected" by administrative decisions under enactments are intended to be relevant to the scope and purpose of the statutes involved in particular cases and are to be construed accordingly (cf Australian Institute of Marine & Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 (Gummow J) ("AIMPE") at 131; Alphapharm at 272D (Gummow J); Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 (FCA/FC) at 254-255 (Lockhart J), 269 (Gummow J)). Although such considerations as whether an adverse affection is a direct or remote result of a decision and whether it is substantial or not will often be relevant to the issue of standing under the AD(JR) Act, that Act does not indicate a priori that any one consideration is to be conclusive: judgment must be suspended until the considerations revealed to be relevant by the facts of the particular case can be taken into account (cf AIMPE at 133).

The statutory scheme and the meaning of the guidelines which were the precursors of the present rules were explained by Full Courts in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 and Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589. The Explanatory Memorandum which accompanied the National Health Amendment Bill (No 2) 1994 which became the National Health Amendment Act 1995 (Cth) referred to earlier, described the particular public interest relevant to the present case as "the development of an effective, efficient and well-distributed pharmacy service in Australia". The language of the recital in the agreement between the Minister and the Pharmacy Guild of Australia noted earlier was virtually identical. Provisions for the restructuring of the supply of pharmaceutical services and the establishment of the Authority (then called the "Pharmacy Restructuring Authority") had been introduced by the Community Services and Health Legislation Amendment Act 1990 (Cth) and in introducing the bill for that Act, the Minister said in his second reading speech:

" ... it is clearly in the best interests of all Australians, both as taxpayers and patients, that pharmacy numbers be reduced by encouraging pharmacists to either amalgamate or close to reduce the numbers of inefficient pharmacies which are a drain on the Government, and to strengthen those more viable pharmacies that remain."

(Hansard, House of Representatives, 20 September 1990, p 2345).

The private commercial interest of Big Country is not coincidental with the particular public interest described above. Its interest operates in a different sphere. Big Country's interest in the retention of a pharmacy at shop 11A and the non-establishment of one at Eaglevale, like its competitor's interest in the establishment of a pharmacy at Eaglevale and the elimination of one at shop 11A, is not intended to serve the public interest in the restructuring of
the provision of pharmaceutical services in Australia. Either result may be opposed to, supportive of, or neutral towards, the public interest served by the legislative scheme, any such opposition, support or neutrality being purely accidental.

These considerations make it clear that Big Country does not qualify as a "person aggrieved" by reason of having an interest coincident with, or embraced by, the interests served by the legislation. Several cases suggest further that these considerations show that Big Country is not a person aggrieved: Alphapharm; Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589 (FC) at 597; Rayjon Properties Pty Ltd v Department of Housing Local Government and Planning (Qld) (1994) 85 LGERA 251 (Qld/Thomas J). These were all cases in which the proprietors of existing businesses claimed to be aggrieved by administrative decisions which permitted a competitor to embark upon a course of action which would, according to the respective applicants, damage their commercial interests. In all three cases the applicant's interest in seeing its rival hindered, frustrated or delayed was held not to be an "interest adversely affected" for the purpose of giving the status of a "person aggrieved" by the decision.

Of course, Mr McLeod's interest in relocating is also a private and commercial one which is unrelated to the purposes served by the legislative scheme. But Mr McLeod is the party to an application for the making of which the Act provides and, indeed, sub-r 6(a) obliges the Authority to recommend the approval which he seeks if specified conditions are satisfied. In these ways, his private commercial interest is recognised as deserving of protection. He is entitled to invoke the AD(JR) Act for the purpose of ensuring that the Authority's and the Secretary's decision-making in relation to his application takes place in accordance with law.

In my opinion, a proper reading of sub-ss 5 (1) and 3 (4) of the AD(JR) Act in association with Part VII of the Act shows that the commercial interests of Big Country, like the competing commercial interests of the proprietor of Eaglevale Market Place, in having Mr McLeod operate a pharmacy within its shopping complex after 23 November 1995, lies outside the legislature's contemplation and is not intended to be protected by the AD(JR) Act. Accordingly, in my view Big Country is not a person "aggrieved" by the Authority's recommendation.

As noted earlier, the case proceeded on the basis that for the purpose of the issue of standing, Big Country's interest is commercial only and that after 23 November Mr McLeod will be free of any contractual obligation to continue as a pharmacist in shop 11A. The lease was entered into just before "restructuring" was introduced. When it was entered into, the parties contemplated that Mr McLeod would be free after 23 November 1995 to cease trading at shop 11A with or without a sale of that business, and to commence trading as a pharmacist nearby. It was also contemplated that Big Country would be at liberty to ensure continuation of a pharmacy in shop 11A, whether or not there was a competing pharmacy nearby. Restructuring has interfered with the market in various ways, not all of which may be obvious. It suffices to say that in my view, the prospective commercial advantage to Big Country after 23 November 1995, contrary to the expectations of the contracting parties, of having a captive pharmacist who must succumb to commercial exigencies by "negotiating" a further lease from Big Country is not the kind of interest, an adverse effect on which should be readily accepted as qualifying Big Country as a "person aggrieved".

In Pharmacy Restructuring Authority v Martin, supra, and Loveridge v Pharmacy Restructuring Authority, unreported, Whitlam J, 23 August 1995, the relocation would place the relocated pharmacy near an existing pharmacy being conducted by the applicants for review who would, accordingly, be exposed to unwanted competition. In Martin's case the Full Court rejected the applicants' submission that procedural fairness required the Authority to afford them a right of hearing before deciding to recommend approval of the application. In Loveridge's case, Whitlam J held that the approval would inevitably affect the applicants in the conduct of their business, that the Authority's recommendation and the Secretary's approval would result in a real grievance, that if the applicants were able successfully to impugn those decisions they might well gain something of significance by being restored to their monopoly position, and that in the result they were persons "aggrieved" by the Authority's recommendation and the Secretary's decision.

It is not necessary for me to form a view as to whether his Honour's decision was correct. The facts in Loveridge's case are distinguishable from those of the present one. In Loveridge's case, the applicants already lawfully carried on, and were entitled to carry on, what was the only pharmacy business in a shopping complex and the introduction into the shopping complex of a competitor would be apt to have an obvious adverse impact on their business including the value of the associated goodwill - a form of property. In the present case, on the other hand, Big Country looks to achieve a commercial advantage in the future, that is to say, after 23 November, to which it has no legal or moral entitlement. By preventing the grant of approval, it will bring about a situation in which, in the nature of things, it will be able to take a prize which at present seems destined for its competitor: cf Helicopter Utilities Pty Ltd v Australian National Airlines Commission (1961) 80 WN (NSW) 48 (Jacobs J) at 54-56.

The case is not even one in which the Raby Centre has, through Big Country's efforts, come to occupy a commercially advantageous position. Rather, Big Country seeks to obtain a windfall benefit of a kind which is a by-product of the advent of restructuring. This possibility is not, in my view, the kind of "interest" protected by the AD(JR) Act.

For the foregoing reasons, for the purposes of the AD(JR) Act, Big Country does not qualify as a "person aggrieved" by reason of the susceptibility of its commercial interests to adverse effects which would result from a decision of the Secretary approving of Mr McLeod's application.

The alleged involvement of Big Country in the process leading to the Authority's decision to recommend approval.

In several cases, the fact that an applicant for an order of review has had a right to be heard at, or has otherwise been connected with or involved in, inquiries or procedures antecedent to the making of the decision impugned, such as by being consulted or invited or allowed to make submissions, has been recognised as a factor in favour of the according of standing; cf Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 478 (Barwick CJ); AIMPE at 133; Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 (Burchett J) at 131; United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 (FC); Alphapharm at 266 (Burchett J). In my view that consideration is of no relevance to this case.

On 18 July 1995, Big Country's solicitors took the initiative of writing to the Authority in relation to Mr McLeod's proposed relocation to Eaglevale and submitted a report by a surveyor, Mr Gordon Russell, which the solicitors said showed that the distance between the two sites exceeded one kilometre and asked that this information be taken into account by the Authority in the decision making process. On 20 July, the Authority replied as follows:

"The Pharmacy Restructuring Rules allow for relocations over 1 kilometre where the premises in respect of which approval is sought are situated not less than 2 kilometres, measured door to door by the shortest lawful access route, from the nearest other approved pharmacy, provided that:

(i) there is an approved pharmacy within 5 kilometres of the site being vacated; or

(i) [sic]

the Authority is satisfied that there will not be a definite community need for pharmaceutical services in the area being vacated.

Therefore as long as the relocation is not to within 2 kilometres of another approved pharmacy, the ACPA would be able to recommend approval as the pharmacy would also still be within 5 kilometres of his vacated site.

I have registered your correspondence and shall present it to the Authority should such an application for relocation be made.

I have enclosed a copy of the Ministerial Rules for your information."

On 24 July, Big Country's solicitors replied as follows:

"We appreciate the matters which you have raised in relation to Mr McLeod's application to relocate his pharmacy premises from Raby to Eaglevale. It is our understanding that there are existing approved premises within two kilometres of the Eaglevale site and it was for this reason that we believed Mr
McLeod sought to relocate his pharmacy on the basis of exceptional circumstances as stipulated under the Agreement for relocations between one or two kilometres.

We will seek to clarify the position further with out [sic] client."

On 26 July the solicitors wrote to the Authority asserting that there were other premises the subject of an approval at a distance of 1.89 kilometres from Eaglevale, that Big Country had arranged for a surveyor to measure that distance, and that a copy of the surveyor's report would be forwarded to the Authority within the next few days. The letter continued:

"Accordingly, we reiterate that on the information available to our client it appears that Mr McLeod is seeking to establish exceptional circumstances which must be shown for relocation between one and two kilometres which, as we have previously indicated, our client submits do not exist."

The solicitors concluded by requesting that the correspondence together with previous correspondence be provided to members of the Authority.

On 2 August 1995 the Authority replied asking that Mr Gordon Russell's survey report in relation to the distance between shop 11A and Eaglevale be substantiated with a map showing the route taken by Mr Russell to measure the distance.

On 10 August 1995 Big Country's solicitors replied to the Authority forwarding the map showing the route taken by Mr Russell between shop 11A and Eaglevale, together with other documents.

On 15 August 1995 Big Country's solicitors wrote to the Authority suggesting that it would be desirable if the surveyors' reports supplied by Mr McLeod and Big Country to the Authority were exchanged.

On 17 August 1995 the Authority replied advising, inter alia, as follows:

"As you correctly point out, the principal issue at stake in this matter is the determination of the distance from the existing pharmacies at Raby to the proposed pharmacy, and from the nearest other pharmacy to the proposed pharmacy. To that end, surveyors' reports have been received by the Secretariat to the Australian Community Pharmacy Authority (ACPA), both from the applicant and from you on behalf of your client.

All material which has been received by the ACPA Secretariat is treated as having been supplied commercial-in-confidence to assist the deliberations of the ACPA and for no other purpose. In any event its disclosure by the ACPA Secretariat is prohibited by section 135A of the National Health Act 1953 which prevents an officer disclosing to any person any information the officer has in respect of the affairs of a third person.

Whilst accepting that you are attempting to be constructive in this matter, I regret that in these circumstances I am unable to provide you with copies of any of the material supplied by the applicant. By the same token I wish to assure you that no material supplied by your client has been made available to the applicant."

On 30 August 1995 Big Country's solicitors again wrote to the Authority making a further submission relevant to the correct
manner of measuring the distance between shop 11A and Eaglevale.

I am clearly of the view that the mere fact that the Authority replied in the way in which it did to various letters from Big Country's solicitors, does not signify that Big Country has an "interest" for AD(JR) Act purposes. The legislation does not give it a right to be heard by the Authority. Nor does it require the Authority to give public or other notice of Mr McLeod's application. The Authority did not in fact invite Big Country to make submissions: the initiative was that of Big Country itself.

All that has happened in the present case is that Big Country asserted to the Authority, with survey evidence which it said supported the assertion, that the distance between shop 11A and Eaglevale exceeds one kilometre. The Authority's routine investigation of that assertion in correspondence with Big Country does not give it a relevant interest. To hold to the contrary would be to encourage the creation of standing by a stratagem of "entrapment" of decision-makers and to put an unwarranted premium on a policy of reticence and withdrawal by the latter when in receipt of unsolicited communications even if good administration and a responsible approach to statutory functions dictate that the matters raised should be explored.

In the cases to which I referred earlier, the legislation in question contemplated that a decision would be reached after inquiry or investigation, or at least the decision-maker in fact embarked upon such a process in a formal and structured way, and the applicant's claim to be heard was recognised either in the legislation or in that process. The present case is far removed from those.

Moreover, the question of distance is a simple matter of correctly interpreting the notion of "shortest possible access route door to door" in sub-r 6 (a) of the Determination, identifying the route between shop 11A and Eaglevale which satisfies that description and measuring the distance of that route. Such a question is different in kind from the issues involving opinion, judgment and assessment which fell for determination in the cases to which I have referred. In respect of the latter, the making of submissions has a more obvious role.

For all the foregoing reasons, I do not think that the course of correspondence between the Authority and Big Country gave rise to an "interest" in Big Country necessary to an "adverse affection" and so to the status of "person aggrieved" under the AD(JR) Act.

CONCLUSION

I will answer the question set aside for separate decision, "No". It follows that the application will be dismissed in so far as it seeks relief under the AD(JR) Act. That is the only relief sought against the Authority and the Secretary. Accordingly, as against them, the application will be dismissed with costs.

As against the third respondent, the application will be dismissed in so far as it seeks the relief referred to in paras 1-4 of the application and Big Country will be ordered to pay Mr McLeod's costs of the separate question. Otherwise, as between Big Country and Mr McLeod the proceedings will be stood over to a date for directions as to the further conduct of the proceedings.

I certify that this and the preceding 29 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated: 17 October 1995

Heard: 3 October 1995

Place: Perth (heard in Sydney)

Decision: 17 October 1995

Appearances: Mrs A C Bennett SC with Mr S Burley of counsel instructed by Ebsworth and Ebsworth, solicitors, appeared for the applicant.

Mr A Markus, solicitor, of The Australian Government Solicitor, appeared for the first and second respondents.

Dr G Flick SC with Mr J Fitzgerald of counsel instructed by Abbott Tout, solicitors, appeared for the third respondent.

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