FEDERAL COURT OF AUSTRALIA

 

HEALTH LAW Ð supply of pharmaceutical benefits Ð application for approval of relocation of pharmacistÕs existing premises Ð interpretation of rules governing applications for relocation - whether proposed premises situated not more than one kilometre, measured door to door by the Òshortest lawful access routeÓ from the existing premises Ð consideration of survey evidence

ADMINISTRATIVE LAW - judicial review Ð pharmaceutical benefits Ð decision of The Australian Community Pharmacy Authority (Òthe AuthorityÓ) Ð whether decision was not authorised by the enactment in pursuance of which it was made Ð whether the AuthorityÕs power to make a recommendation of approval is contingent on the existence of an objective fact or the AuthorityÕs subjective opinion

WORDS AND PHRASES Ð Òshortest lawful access routeÓ

Administrative Decisions (Judicial Review) Act 1977 (Cth): s 5(1)(d)

National Health Act 1953 (Cth): s 90(3), s 99K

Attorney‑General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 - applied

Australian Heritage Commission v Mount Isa Mines Limited (1995) 60 FCR 456 - considered

Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 Ð considered and applied

Australian Community Pharmacy Authority v Hanna (1997) 24 AAR 213 Ð considered and applied

Banias v Australian Community Pharmacy Authority (unreported, Sundberg J, 18 July 1997) Ð considered and applied

Big Country Developments Pty Limited v Australian Community Pharmacy Authority (1995) 60 FCR 85 - considered

 

LEWI KARALIS & ANOR v THE AUSTRALIAN COMMUNITY PHARMACY AUTHORITY & ORS

VG 460 of 1998

 

GOLDBERG J

MELBOURNE

22 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 460 of 1998

 

BETWEEN:	LEWI KARALIS First Applicant   GEORGE VOULGARIS Second Applicant
AND:	THE AUSTRALIAN COMMUNITY PHARMACY AUTHORITY First Respondent   THE SECRETARY TO THE DEPARTMENT OF HEALTH AND FAMILY SERVICES Second Respondent   PAUL KAVANAGH Third Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	22 DECEMBER 1998
WHERE MADE:	MELBOURNE

 

THE COURT ORDERS THAT:

 

1.         The application is dismissed.

2.         The applicants pay the respondentsÕ costs of the application including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 460 of 1998

 

BETWEEN:	LEWI KARALIS First Applicant   GEORGE VOULGARIS Second Applicant
AND:	THE AUSTRALIAN COMMUNITY PHARMACY AUTHORITY First Respondent   THE SECRETARY TO THE DEPARTMENT OF HEALTH AND FAMILY SERVICES Second Respondent   PAUL KAVANAGH Third Respondent

 

JUDGE:	GOLDBERG J
DATE:	22 DECEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

The applicants seek a declaration that the decision made by the first respondent (Òthe AuthorityÓ) on 22 July 1998 under s 99K(1)(b)(i) of the National Health Act 1953 (Cth) (Òthe ActÓ) (Òthe decisionÓ) to recommend that the second respondent (Òthe SecretaryÓ) grant approval under s 90(3) of the Act, of premises at La Trobe Medical Centre Plenty Road, Bundoora as premises from which the third respondent is authorised to supply pharmaceutical benefits, is invalid and of no effect.

The applicants also apply for an order of review of the decision pursuant to s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (Òthe ADJR ActÓ) and seek ancillary relief against the Secretary. At the time the application was filed the applicants were not aware of the reasons for the decision and they relied upon a number of grounds pursuant to the provisions of s 5(1) of the ADJR Act. As a result of material filed by the respondents the applicants have confined their grounds for review to the ground that the decision was not authorised by the enactment in pursuance of which it was purported to be made: s 5(1)(d) of the ADJR Act.

The applicants say they are affected by the decision because, if acted upon by the Secretary, the Secretary will permit the third respondent to relocate the premises from which he presently supplies pharmaceutical benefits from his approved premises at 9 Link Street, Kingsbury (Òthe present premisesÓ) to premises at the proposed La Trobe Medical Centre at the north‑east corner of Plenty Road and Kingsbury Drive, Bundoora (Òthe proposed premisesÓ). The proposed premises are closer to the premises from which each of the applicants currently is authorised to supply pharmaceutical benefits. The applicants say that this relocation will cause them substantial loss of business and revenue.

The statutory scheme

The scheme of the Act in relation to the approval of pharmacy premises at which an approved pharmacist wishes to supply pharmaceutical benefits involves the participation of the Secretary and the Authority and is found in Pt VII of the Act. Part VII of the Act contains provisions relating to pharmaceutical benefits. ÒPharmaceutical benefitÓ for the purposes of Pt VII is defined in s 84(1) as meaning:

Òa drug or medicinal preparation in relation to which, by virtue of section 85, this Part applies.Ó

Section 85 provides, in substance, that benefits shall be provided by the Commonwealth in respect of the drugs and medicinal preparations to which Pt VII of the Act applies and that Pt VII applies to drugs and medicinal preparations declared by the Minister to be drugs and medicinal preparations to which Pt VII applies.

Section 90 of the Act provides:

Ò(1)     Subject to this section, the Secretary may, upon application by a pharmacist who is willing to supply pharmaceutical benefits on demand at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at or from those premises.

É

(3)       Subject to this section, where an approved pharmacist desires to supply pharmaceutical benefits at or from premises (being premises at which the pharmacist carries on, or is about to carry on, business as a pharmacist) other than premises in respect of which approval has been granted, the Secretary may on application by the approved pharmacist, grant approval in respect of those other premises.

(3A)     Subject to subsection (3AA), an application under this section must be referred to the Authority.

É

(3B)     An approval may be granted under this section in respect of an application to which subsection (3A) applies only if the Authority has recommended the grant of the approval, but the Secretary may refuse to grant an approval even if the grant has been recommended by the Authority.Ó

Section 99K(1) of the Act provides that the functions of the Authority (established by s 99J) are:

Ò(a)     to consider applications under sections 90, 99ZA, 99ZAA and 99ZDA; 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 Ð recommendations as to the conditions (if any) to which the approval should be subject; and

ÉÓ

 

 

In compliance with the provisions of s 99L of the Act the Minister for Health and Family Services has made rules subject to which the Authority is to make recommendations under s 99K(1) of the Act.

The rules which are relevant and operative for the purposes of this application have effect from 1 July 1998 and are found in the ÒPharmaceutical Benefits Determination under sub‑s 99L(1)Ó which has the designation ÒNo. PB13 of 1998Ó. Paragraph 3 of the Determination provides:

ÒFor the purposes of paragraph 99K(1)(b) of the Act, the rules with which the Authority must comply in making a recommendation on an application by a pharmacist for approval under section 90 of the Act in respect of particular premises are set out in paragraphs 4 to 9.Ó

Paragraph 4 provides:

ÒApproval of a pharmacist under section 90 of the Act in respect of particular premises must not be recommended except as provided for in paragraphs 5 to 8.Ó

For present purposes the relevant paragraph is par 6 which provides:

ÒSubject to paragraph 8, approval of a pharmacist (Ôthe applicantÕ) under section 90 of the Act in respect of particular premises must be recommended if the applicant has a legal right to occupy those premises for the purpose of operating a pharmacy, and either:

(aaa)   the applicant is already approved under section 90 of the Act in respect of other premises from which the applicant proposes to cease supplying pharmaceutical benefits immediately before the granting of the approval; or

(aa)     another pharmacist (Ôthe vendorÕ) is already approved under section 90 of the Act in respect of other premises from which the vendor proposes to cease supplying pharmaceutical benefits immediately before the granting of the approval to the applicant, and the vendor has specified that it is in favour of the applicant that he or she proposes to cease supplying pharmaceutical benefits;

and one of the following circumstances applies:

(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 from which pharmaceutical benefits are to cease being supplied; or

(b)           the premises in respect of which approval is sought are situated not more than 2 kilometres, measured door to door by the shortest lawful access route, from the premises from which pharmaceutical benefits are to cease being supplied, and the Authority is satisfied that:

(i)             there are no other suitable commercial premises available É

(ii)           the application for approval results from exceptional circumstances É

ÉÓ

 

Background to the decision

The first applicantÕs pharmacy business, carried on at Shop 3, The Agora, La Trobe University, Kingsbury Drive, Bundoora, is located approximately 1600 m from the present premises. The second applicantÕs pharmacy business, carried on at 1019 Plenty Road, Kingsbury is located approximately 700 m from the first applicantÕs premises and 900 m from the present premises. The proposed premises are approximately 600 m from the first applicantÕs premises and 150 m from the second applicantÕs premises.

The applicants had not been advised of the application by the third respondent to the Authority for its recommendation that he be approved pursuant to s 90(3) of the Act because the third respondent had informed the Authority that the distance between the two premises was less than 1000m.

The application for approval

On 1 July 1998 the third respondent and Mrs Paula Kavanagh (collectively called Òthe third respondentÓ) made a written application to the Secretary under s 90 of the Act for approval as a pharmacist to trade at the La Trobe University Medical Centre Pharmacy at the La Trobe University Medical Centre, Plenty Road, Bundoora, the proposed premises. The application specified that approval was sought for the relocation of existing premises. The proposed premises were then under construction on the La Trobe University, Bundoora campus. On the same day the third respondent requested the cancellation of their approval under s 90 of the Act to supply pharmaceutical benefits from the present premises to take effect immediately prior to the granting of approval at the proposed premises.

 

The application was processed by the Health Insurance Commission and on 7 July 1998 it passed the relevant documentation to the Authority. At the time the application was lodged the surveyorÕs report and scale map prepared by the surveyor required to support the application were not ready and they were sent to the Health Insurance Commission on 13 July 1998. The surveyorÕs report was in the following terms:

ÒThe route from Mr.P.KavanaghÕs existing pharmacy in Link Street Kingsbury to the proposed relocation site within the new La Trobe University Medical Centre was measured using a ÔWild T1600 TheomatÕ theodolite with a ÔWild Distomat D12002Õ Electronic Distance Measurer. The resulting distances are accurate to within three millimetres.

On an examination of all the available evidence, the distance of the shortest lawful access route, measured door to (proposed) door, was 996.55m.

This proposed route primarily follows footpaths and roads and passes without obstruction through a public playground.

An alternative route which passes around the playground equipment was rejected only because it is longer than the proposed route. Both routes are less than 1 km. in length.

The roads are each crossed in a lawful manner, within line markings for both pedestrian crossings and carparking where these exist.

The proposed route is one which Ômost people could reasonably expect to useÕ.

A scale map specifying all distances measured along the route accompanies this reportÓ.

 

The scale map or survey plan and the report were sent by the Health Insurance Commission to the Authority on 13 July 1998.

On 22 July 1998 the Authority considered, and recommended approval of, the application for the reason that par 6(a) of the rules had been met, that is to say the relocation was not more than one kilometre. On 23 July 1998 the Secretary of the Authority wrote to the Health Insurance Commission informing it that the Authority had recommended approval of the application for the reason that par 6(a) had been met. On 27 July 1998 the Health Insurance Commission wrote to the third respondent stating that the application had been recommended by the Authority. The letter pointed out that the recommendation did not constitute approval for the application, approval to supply pharmaceutical benefits from the proposed premises being granted by the delegate of the Secretary.

The issue

The applicants contend that the proposed premises are situated more than one kilometre measured door to door by the shortest lawful access route from the present premises.

Mr John Paul a licensed surveyor retained on behalf of the applicants measured the distance by what he said is the shortest lawful access route between the front door of the present premises and the front boundary of the proposed premises as 1032m. The proposed premises are presently under construction and Mr Paul said that the distance measured was substantially less than the distance to the door of the premises to be occupied by any pharmacy located in the proposed premises.

Another licensed surveyor retained on behalf of the applicants, Mr Neil Webster, said that the measurements on the survey plan submitted to the Authority were accurate but that the route shown on the plan may not necessarily be described as Òan access routeÓ between the two premises. He explained in some detail why he held this view and said that if the access route is measured, taking into account a number of the matters to which he has referred, the distance would be in excess of one kilometre.

Mr Richard Davies, a licensed surveyor retained by the third respondent, has measured what he said is the shortest lawful access route door to door from the present premises to the proposed premises as 996.55m. The route that he measured primarily follows footpaths and roads and passes without obstruction through a public playground. He said that the various items of equipment in the playground are separated by considerable distances and present no obstacles to pedestrians passing along the route indicated. He also measured an alternative route which passes around the playground equipment which was slightly longer by 1.3 m but less than one kilometre in length and said that there was no obstacle along either route which would hinder pedestrian traffic.

An affidavit has been filed on behalf of the third respondent by Mr Alick Freake who lives two houses away from the north west corner of the intersection of Dunne Street and Plenty Road, Kingsbury. His house is situated on the northern side of Dunne Street. For at least the last fifteen years he has made purchases from the third respondentÕs present premises and has followed the route depicted on Mr DaviesÕ plan. He has never encountered any obstacle or impediment to his passage when he has walked along that route which he said is the shortest way to the present premises. On 23 November 1998 Mr Freake walked along the route, the subject of Mr WebsterÕs observations, being the route Mr Davies had depicted on his plan and found no obstacle or impediment in following it. Mr Davies accompanied Mr Freake on his walk and recorded it on video. Mr Davies disagreed with Mr WebsterÕs reasons why the route described by Mr Davies is not the shortest lawful access route between the doorways of the two pharmacies.

Although the applicants initially contended that the shortest lawful access route between the doorways of the two pharmacies was in excess of one kilometre for a number of reasons their final submissions were directed to three specific circumstances which they said added extra distance to the third respondentÕs licensed surveyorÕs route measured at 996.55 m thereby extending the route to a distance in excess of one kilometre.

Counsel for the Authority and the third respondent objected to the admissibility of the affidavits of Mr Paul and Mr Webster because they contained survey and factual evidence which was not before the Authority when it made its decision. It was submitted that the determination of the distance between the two premises measured door to door by the shortest lawful access route was a matter for the Authority and not for the Court to determine de novo and that accordingly the evidence of the two surveyors called by the applicants was irrelevant and inadmissible. I allowed the affidavits of Mr Paul and Mr Webster to be tendered subject to objection adopting the procedure and approach of Lockhart J in Attorney‑General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 and 539‑540. However I ruled inadmissible evidence sought to be led in relation to what were said to be changes to the shortest lawful access route between the two premises which had occurred subsequent to the decision of the Authority.

The submissions

The applicants submitted that the decision is invalid on the ground that an essential condition to the exercise of power by the Authority, the condition prescribed by the rules, namely that the two premises Òare situated not more than 1 kilometre door to door by the shortest lawful access routeÓ from each other, did not exist,. It was submitted that the rules circumscribe the discretion committed to the Authority: Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 at 301 per Hill J, and that the AuthorityÕs power to make a recommendation of approval in respect of the application was contingent on the existence of the fact prescribed by par 6(a) of the rules. The applicants contended that the paragraph is expressed objectively and confers no discretion on the Authority, that is to say it prescribes a fact that does not call for the exercise of any value judgment or application of specialised knowledge. Put shortly the applicants submitted that the rules do not commit the decision whether par 6(a) is complied with to the subjective opinion of the Authority.

The applicants submitted that the relevant rules are expressed in mandatory form. They pointed to s 99K(2) of the Act which provides:

ÒIn making a recommendation under subsection (1), the Authority must comply with the relevant rules determined by the Minister under section 99L.Ó

Reliance was placed on par 4 of the rules which provides that approval Òmust not be recommended except as provided for in paragraphs 5 to 8Ó and that par 6(a) of the rules was not couched in terms, unlike par 6(b), that the Authority had to be ÒsatisfiedÓ of the relevant matters.

The respondents disputed that the power committed to the Authority depended upon the determination of the objective fact and submitted that the determination of whether the proposed premises were Ònot more than 1 kilometre, measured door to door by the shortest lawful access routeÓ from the present premises was a matter for the Authority to determine.

Reasoning

Both applicants and respondents relied upon passages in the dissenting judgment of Black CJ in Australian Heritage Commission v Mount Isa Mines Limited (1995) 60 FCR 456 at 465‑467. On appeal (187 CLR 297) the High Court reversed the decision of the Full Federal Court and, in effect, upheld the judgment of Black CJ. At 465‑466 Black CJ said:

ÒSubject to constitutional limitations (and none were suggested in the present case) an Act may commit to an administrative body the power to investigate and conclusively to determine the existence of certain facts upon which the exercise of a power to proceed further, such as the power to enter a place in the Register of the National Estate, may depend. In such circumstances, the capacity of a court to review a decision by an administrative body that the facts do exist will be limited, in accordance with the ordinary principles of judicial review, and there will be no question of the court making its own decision as to the true facts. On the other hand, the legislature may make the power to do such an act contingent upon the actual existence of a state of facts: see, for example, the discussion by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391. Where the legislature has made the exercise of a power contingent upon the actual existence of a state of facts the existence or non‑existence of those facts may be determined by a court having jurisdiction to review the decision. Although in some cases it may be very difficult to decide upon which side of the line a particular provision falls, the question is one of construction ÉÓ

His Honour then considered three general areas which bore upon the issue. His Honour said:

ÒIn considering the present question it is appropriate to examine first the nature of the task committed to the Commission under the Act. Reference to the definition of the national estate in s 4 of the Act reveals that the task of determining whether a place is part of the national estate may be a difficult and complicated one, involving careful assessment of complex facts and the formation of opinions and value judgments on a potentially very wide range of matters.

É

In such circumstances the very nature of the task of identifying places that are part of the national estate is suggestive of an intention that the body established by the Parliament with the function of identification is to have the power to make a conclusive determination of that matter. What the respondent argues is Ôa jurisdictional factÕ, namely the identity of a place as part of the national estate, is a conclusion of fact and one that must often rest on a range of potentially difficult and complicated facts, assessments and value judgments. If the conclusion that a place is part of the national estate were to be seen as a jurisdictional fact, one of the CommissionÕs most important functions, and a key function in the overall scheme of the Act, would be performed only provisionally. Even where none of the familiar grounds of judicial review could be made out, and there was no suggestion that the Commission had acted otherwise than according to law, the identification of a place as part of the national estate could still be challenged on the facts. Despite the possible application of the principle that weight is given to the findings of fact of a specialist tribunal concerning a jurisdictional fact, there would be something approaching merits review of the CommissionÕs decision since the matter for factual review would be, essentially, the performance of the whole function of identification.Ó

His Honour then considered the second area of inquiry:

ÒThe inconvenience of such a result, an inconvenience that would be of a large dimension having regard to the subject matter of the Ôjurisdictional factÕ, is a powerful indication that it was not the intention of the Parliament that the finding should, in effect, be only provisional. Rather it suggests that it was the ParliamentÕs intention that the power of the Commission to enter a place in the Register of the National Estate was to be contingent upon the CommissionÕs own view of the matter. Inconvenience is a matter to be considered in ascertaining the intention of the Parliament in this area ÉÓ

His Honour then considered the third area of inquiry:

ÒThere is another matter that tells against the jurisdictional fact conclusion. The function of the Commission is to identify places and prepare a register in accordance with Pt IV of the Act. That part assumes a right to make written objections to the entry of a place in the Register and, as I noted when considering the first question, the Commission must give due consideration to a timely objection. Such an objection could of course be made on the ground that a place was not in fact within the definition of the national estate. The circumstance that the Commission is obliged to give due consideration to such an objection rather suggests that it is the Commission which is to have the final say on the question whether, in fact, a place is part of the national estate.Ó

 

 

This issue was also addressed by Branson J, in the context of the statutory scheme presently under consideration, in Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462. The Authority had made a recommendation to the Secretary under s 90 of the Act that the third respondents in that proceeding be granted approval to supply pharmaceutical benefits from specified premises. A number of grounds under s 5 of the ADJR Act were raised including lack of jurisdiction and that the decision was not authorised by the enactment. Her Honour did not give detailed consideration to this latter ground noting that it was Òargued on the basis that it did not add to the issues raised by other groundsÓ. However, her HonourÕs reasons in relation to the ground of lack of jurisdiction are directly relevant to the issue before me. It was contended that the AuthorityÕs jurisdiction to make the recommendation that it did and the SecretaryÕs jurisdiction to give the approval, was dependent upon the fact of the premises not being less than two kilometres (that being the distance set out in an earlier rule) measured door to door by the shortest lawful access route from the nearest other premises in respect of which a pharmacist was approved under s 90 of the Act. Her Honour was satisfied that the evidence had established that in fact the relevant premises were less than two kilometres from the nearest other premises.

Her Honour referred to the first part of the passage to which I have already referred in the judgment of Black CJ in Australian Heritage Commission v Mount Isa Mines Limited (supra) and said (476):

ÒThere is, in my view, a real difficulty in seeking to construe the determination as making the power of the authority to make a favourable recommendation contingent upon the actual existence of a state of fact, as opposed to its own determination of that state of fact. The recommendation of the authority is necessary before the Secretary can approve an application under s 90 of the Act. The authority is established with a membership calculated to lead to substantial industry input into its decision making processes. The rules bind the Authority but have no direct relevance to the discretion of the Secretary under s 90(1) of the Act. If the power of the Authority to recommend an approval under s 90 of the Act is contingent upon the actual existence of the prescribed distance, measured by the prescribed route, between the two relevant sites, the Secretary would be unable to act on the recommendation of the authority until he or she had satisfied himself or herself of the actual existence of that prescribed distance, a task by the rules given to the Authority with its industry representation. In strict theory, the validity of the recommendation would remain an outstanding question until a court or tribunal possessing power to determine the question decided that the prescribed distance did in fact exist (Parisienne Basket Shoes Pty Ltd v Whyte at 391 per Dixon J). Plainly, in my view, neither the Act nor the determination discloses an intention that the Secretary should review the work of the Authority in this way.

It is true that the rules draw a distinction between matters of fact and matters in respect of which the authority is to be ÔsatisfiedÕ. In my view, this distinction does not reflect an intention that the AuthorityÕs power to act is contingent upon the actual existence of those matters of fact. Rather, the distinction between matters of fact and matters in respect of which the Authority is required to be satisfied reflects a distinction between matters capable of objective determination and those which involve an exercise of judgment (eg Ôa definite community needÕ; Ôsuitable commercial premisesÕ; Ôexceptional circumstancesÕ).Ó

 

 

I consider that the appropriate course for me to take is to follow her HonourÕs decision unless I thought it was clearly wrong: Bank of Western Australia Limited v Commissioner of Taxation (1995) 55 FCR 233 at 255 and the cases there cited. Mr Hanks, who appeared for the applicants, submitted that her HonourÕs reasoning was plainly wrong, particularly in the last paragraph of the passage in her HonourÕs reasons to which I have referred above. Mr Hanks submitted that the distinction drawn in the rules between matters of fact and matters in respect of which the Authority is to be ÒsatisfiedÓ did reflect an intention that the AuthorityÕs power to act is contingent upon the actual existence of those matters of fact.

Although it is true, as the applicants point out, that par 6(a) is not couched in terms of the Authority being satisfied that the relevant premises are situated not more than one kilometre measured door to door by the shortest lawful access route from the other premises, I do not consider that the AuthorityÕs power to make a recommendation of approval is contingent on the existence of an objective fact rather than on the AuthorityÕs opinion that the relevant distance has not been exceeded.

The scheme of the Act is that the Authority must comply with the rules made by the Minister. However it is apparent from the statutory scheme that if a recommendation is made the Secretary is entitled to act upon the recommendation. As Branson J pointed out in Pharmacy Guild of Australia v Australian Community Pharmacy Authority (supra) if a recommendation was liable to be challenged on the basis that the relevant facts which it had found did not exist the validity of the recommendation and the approval upon which it was based would remain an outstanding question. I agree, with respect, with the observation of Branson J that:

ÒNeither the Act nor the determination discloses an intention that the Secretary should review the work of the Authority in this way.Ó

Notwithstanding the difference in language in pars 6(a) and 6(b) referred to by the applicants I do not accept the submission that Branson JÕs analysis was clearly wrong and I consider that I should follow her HonourÕs decision.

The statutory scheme requires an affirmative recommendation from the Authority before the Secretary is entitled to grant an approval: s 90(3B), but the Secretary is nevertheless entitled to refuse to grant an approval even if the Authority has recommended that approval be granted. It is apparent that the Secretary is entitled to accept what the Authority has decided and recommended as the basis upon which he or she can exercise his or her power under s 90(1) to approve or not to approve a pharmacist at particular premises. Although par 6(a) is expressed in absolute or objective terms in the sense that it refers to the measurement of a particular route and par 6(b) is expressed in terms of the Authority being satisfied that certain matters exist, I do not consider that the change in words is intended to reflect the fact that the AuthorityÕs decision or recommendation is dependent on the fact of the measurement of that route being objectively true. Rather the change in terminology is reflective of the nature of the inquiry to be made. Both sub‑pars (a) and (b) are introduced by the words Òand one of the following circumstances appliesÓ and, in my opinion, the intention to be deduced from the structure of par 6, taken as a whole, is that the existence of the circumstances which apply is to be determined by the Authority forming the view that they apply. I consider that the application of the principles and considerations referred to by Black CJ in Australian Heritage Commission v Mount Isa Mines Limited (supra) support this conclusion. In particular I have had regard to the relationship between the functions of the Authority and the Secretary and the inconvenience to which a contrary decision would lead. It would leave as an open question whether the SecretaryÕs approval was based on a valid recommendation.

It is also significant that both sub‑pars (a) and (b) of par 6 involve an exercise of judgment and not simply the determination of an objective fact. Paragraph 6(a) does not require the Authority to determine the ÒdistanceÓ between the two pharmacies door to door but rather to determine the measurement of Òthe shortest lawful access routeÓ between the two pharmacies door to door. As is apparent from the observations of Mansfield J in Australian Community Pharmacy Authority v Hanna (1997) 24 AAR 213 at 222‑223 the determination of an Òaccess routeÓ does require the exercise of judgment on issues such as the permanency of the route, the extent to which it is accessible and whether it is subject to any significant impediment.

In that case Mansfield J considered that an earlier rule which was couched in terms of a distance Òmeasured door to door by the shortest lawful access routeÓ was expressed objectively and that it was not apparent that:

Òit invites matters of fine judgment and opinion.Ó (222)

His Honour referred to the observations of Lindgren J in Big Country Developments Pty Limited v Australian Community Pharmacy Authority (1995) 60 FCR 85 where at 97 Lindgren J said:

ÒÉ the question of distance is a simple matter of correctly interpreting the notion of Ôshortest possible access route door to doorÕ in 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 referredÓ.

In that case his Honour did not have to determine what was the shortest possible access route door to door between the two premises because he was only considering a preliminary question whether the applicant had standing to bring the application and was a person aggrieved by the decision of the Authority. As Lindgren J pointed out the question of distance may be a simple matter of correctly interpreting the notion of the shortest possible access route door to door involved but in my opinion, that interpretation can involve elements of judgment and assessment in relation to the issue whether the route is an ÒaccessÓ route, thereby bringing into consideration issues such as permanency, accessibility and impediments.

 

I therefore approach the matter on the basis that the AuthorityÕs power to make a recommendation of approval to the Secretary was not contingent upon the existence of an objective fact but was rather contingent on the Authority forming the view or holding the opinion that the two premises were not more than one kilometre from each other Òmeasured door to door by the shortest lawful access routeÓ.

 

In those circumstances it is apparent that there was material before the Authority which entitled it to reach the conclusion that the premises in respect of which approval was sought were not situated more than one kilometre measured door to door by the shortest lawful access route from the premises from which pharmaceutical benefits were to cease being supplied. A surveyorÕs scale map or survey plan had been placed before the Authority and the surveyor had stated that:

ÒOn an examination of all the available evidence, the distance of the shortest lawful access route, measured door to (proposed) door, was 996.55m.Ó

Accordingly, it was open to the Authority on the material before it to reach the conclusion that par 6(a) of the rules applied and that it should make a recommendation.

In such circumstances the evidence which the applicants have led in relation to the distance between the two pharmacies measured door to door being in excess of one kilometre is irrelevant and inadmissible. That evidence, to the extent to which it was ultimately relied on by the applicants, related to:

(a)            an increase in the route of 2.6 m because it was said that the route should not cross Dunne Street diagonally as crossing the road diagonally is prohibited by reg 703(1)(a) of the Road Safety (Traffic) Regulations 1988 which provides:

Ò(1)     A pedestrian must Ð

(a)           when crossing a carriageway or portion of a carriageway, do so as nearly as practicable by the shortest and most direct route to the carriageway;Ó

(b)           the distance being increased by 1.3 m because the route should not pass through the playground;

(c)            the route being increased by a distance of the order of one to two metres because the route, when approaching the proposed premises avoids using a paved pedestrian walk‑way.

If I am wrong in my conclusion that the AuthorityÕs power to make a recommendation was contingent on the AuthorityÕs opinion of the existence of the facts rather than on the objective existence of the fact I do not consider that in the circumstances it has been established that the objective fact is that the proposed premises are situated more than one kilometre, measured door to door by the shortest lawful access route, from the present premises.

The content of the expression Òshortest lawful access routeÓ in par 6(a) was considered by Mansfield J in Australian Community Pharmacy Authority v Hanna (supra). In that case the Authority had proposed a legal test for the phrase Òaccess routeÓ as:

ÒA route generally available to be taken between approved premises and the proposed premises that could hypothetically be used by ordinary persons travelling that route.Ó

At 223 Mansfield J considered the meaning of Òlawful access routeÓ and said:

ÒIt is an expression which is used, in the 1995 Rules, in its normal everyday sense. Subject to one possible reservation, that sense is encompassed in the formulation put forward by the ACPA. É The possible reservation is simply the need for permanency; I do not think a route is an access route if it can only be used for a short period each year, for example, if the route is mostly underwater. É Equally, the fact that a route Ð even a major roadway Ð is subject to occasional flooding would not have been intended to be excluded as an access route. It is, in my view, a matter for practical commonsense. So long as the words Ôgenerally availableÕ carry that import, then I think the formulation put forward by the ACPA is a correct one.

É

There will be suggested routes which, as a matter of practical common sense, do not meet that description [shortest lawful access route]; steepness, danger, obstacles and the like will provide obvious examples. There will come a point at which such impediments will be of such a nature as not to destroy the quality of the route as an access route. Generally, where that line is crossed is a question of fact. A route is not an access route for the purposes of the 1995 Rules if only the fittest and strongest can use it, any more than it may be an access route even if a particular person or persons by reason of age or disability cannot use it.

For the reasons expressed above, in my view the focus should be on the physical characteristics and features of the suggested route, rather than upon the persons or categories of persons who might choose to use it but for age, frailty, or for other reasons, or upon those who do use it. It is evident therefore that usage, even relatively frequent usage during certain times of the year, by members of a community will be indicative of, but not conclusive of, the question of fact.Ó

 

 

In Banias v Australian Community Pharmacy Authority (unreported, Sundberg J, 18 July 1997), Sundberg J followed Mansfield JÕs definition of Òaccess routeÓ and said that the word ÒlawfulÓ in the phrase Òshortest lawful access routeÓ:

Òmay mean a route that is positively authorised, or one that is not forbiddenÓ.

His Honour concluded that the context supported the interpretation that what was intended was a route that was not forbidden rather than one which was positively authorised. His Honour said at 7:

ÒHad the intention been to restrict the routes in question to public roads and footpaths, it would have been easy to have said so. That it was not said shows a contemplation that access might be obtained over private land. If a land owner expressly invites others to walk over his land, their use of the way is not only not forbidden, it is positively authorised. Similarly with an express licence to enter private property. The use of private land pursuant to the licence is not only not forbidden, but positively authorised. Thus a licence may be given by implication when the public habitually uses land to the knowledge of the occupier and no steps are taken to prevent the use. É In these cases it is more appropriate to describe the use of the land as Ônot forbiddenÕ rather than as Ôpositively authorisedÕ.Ó

 

 

I adopt, with respect, the observations of Mansfield J and Sundberg J and turn to consider whether the route mapped out by Mr Davies is generally available, whether it is accessible, whether it is subject to any significant impediments and whether any part of the route is forbidden to persons seeking to use it.

The factual basis upon which the applicants rely to demonstrate that the distance between the two pharmacies measured door to door is in excess of one kilometre is found in the evidence of Mr Webster. (The applicants did not make any submissions based on Mr PaulÕs evidence). Although he drew attention to a number of parts of the access route shown on the survey plan which he said might not necessarily be described as an access route the only matter to which he referred, upon which the applicants rely, is his evidence as to the access route at the point of gaining access to the site of the medical centre in which the proposed premises are situated. The distances upon which the applicants rely in relation to crossing Dunne Street diagonally and walking through the playground can be obtained from measurements shown on the survey plan.

Mr Webster said:

ÒÉ if the access route between the pharmacy at 9 Link Street, Kingsbury and the proposed pharmacy in the La Trobe Medical Centre, Kingsbury is measured by gaining access to the site of the Medical Centre by using the ramped pathway shown on Annexure ÔIÕ the distance would be increased by what appears to be 1‑2 metresÓ.

Annexure ÒIÓ to Mr WebsterÕs affidavit was part of a plan lodged with the planning department of the City of Darebin as provided to him by the applicants and was apparently a plan in existence prior to the date of the filing of the third respondentÕs application on 1 July 1998.

I am not satisfied that in order for the access route to be measured it cannot be measured diagonally across Dunne Street. Notwithstanding reg 703(1)(a) of the Road Safety (Traffic) Regulations 1988 it does not follow that the access route which takes its direction diagonally across Dunne Street is not a lawful access route. Walking diagonally within the crossing is not prohibited in the sense that one is prohibited from walking across Dunne Street. Rather the situation is that if one does walk diagonally across Dunne Street one may be subjected to a penalty. The objective ÒlawfulÓ qualifies Òaccess routeÓ and in my opinion is directed to qualifying the ability of a person to be in the area which the route traverses. The lawfulness of the access route is determined by whether a person using the route is entitled to say Ð I am allowed to use this area as part of the route I am taking. The lawfulness of the access route is related to the ability to use the land over which the route passes rather than the conduct of the person using that land. In any event, if I am incorrect in this respect the distance is increased by 2.6 m which takes the total access route to 999.14 m, still under one kilometre.

I am not satisfied that walking through a playground does not make the route easily accessible or renders it unsafe or subject to an impediment. It may be that from time to time if children are playing in the playground there may be a transient impediment but there is no evidence as to the manner or extent of use of the playground. The route is not therefore rendered unsafe. Although there is an elevated horizontal ladder and a slide forming part of the equipment in the playground, adults are able to walk underneath the ladder and around the slide without hitting either of them or being obstructed by either of them. There is no evidence that the playground is in constant use and Mr Freake said he had used the route which passed through the playground for many years. Mr Davies said the route passes through the playground without obstruction. I have considered the use of the playground as part of the route by reference to the considerations of Mansfield J in Australian Community Pharmacy Authority v Hanna (supra). Adopting the expressions used by his Honour, the route through the playground does not mean that it can only be used for a short period each year. Further, there is no evidence that the route through the playground is not Ògenerally availableÓ nor is the playground such an impediment as will Òdestroy the quality of the route as an access routeÓ.

I do not consider that it is necessary for the access route to follow the ramped pathway referred to by Mr Webster. There is no evidence that pedestrians must use the pathway, nor is there any evidence they are precluded from using the route shown on the survey plan by Mr Davies. Mr Davies said that Òit is unnecessary for pedestrians to use the ramp pathwayÓ and there is no evidence to the contrary. At present there is a temporary wire fence erected by the builder around the building site but I do not consider that the temporary nature of the fence is such as to make the route which it presently impedes not generally available. The applicants made no submission to the contrary.

Mr Hanks invited me to infer that there was no licence to enter the premises other than by the paved pathway and that in fact there was no implied licence to enter the premises in the manner identified on the survey plan. On the material before me I am satisfied that there is no impediment to pedestrians following the route into the medical centre shown on Mr DaviesÕ survey plan across a gentle slope that will be landscaped and I am not satisfied that in order to gain access to the medical centre pedestrians are obliged to use the ramped pathway referred to by Mr Webster. Although there is no established pattern of usage over the proposed landscaped area, it does not follow that the construction of a pathway to the front door means that it is forbidden to use other parts of the outside area of the medical centre to gain access to the inside of the building. The observations of Sundberg J in Banias v Australian Community Pharmacy Authority (supra) to which I have earlier referred do not assist the applicants. Although, as his Honour pointed out, an implied licence may arise from habitual use and although habitual use cannot be established in this case at this stage it is still necessary for the applicants to show that walking over the area to be landscaped is forbidden. This the applicants have failed to establish.

It follows therefore that even if it is open to the Court to determine now on the material which was available at the time the Authority made its recommendation whether or not objectively the shortest lawful access route measured door to door between the two pharmacies was less than one kilometre, I am satisfied on the material that the distance is less than one kilometre objectively on the evidence before me.

The application will be dismissed with costs.

 

I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg

Associate:

Dated:             22 December 1998

Counsel for the Applicant:	Mr P J Hanks
Solicitor for the Applicant:	Laino & Co
Counsel for the First and Second Respondents:	Ms M E Kennedy
Solicitor for the First and Second Respondents:	Australian Government Solicitor
Counsel for the Third Respondent:	Mr B M Dennis
Solicitor for the Third Respondent:	Gerard A Conlan
Date of Hearing:	4 December 1998
Date of Judgment:	22 December 1998