FEDERAL COURT OF AUSTRALIA

Choice Pharmacy Vincentia Pty Ltd v Australian Community Pharmacy Authority [2020] FCA 93

ORDERS

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to “The Secretary, Department of Health”.

2.    By 4 pm on 25 February 2020, the parties must provide to the chambers of Farrell J agreed draft orders reflecting these reasons and with respect to relief and costs.

3.    If draft orders are not agreed as contemplated by Order 2, by 4 pm on 25 February 2020, each of the parties must provide to the chambers of Farrell J draft orders for which the party contends reflecting these reasons and on the issues of relief and costs and brief submissions supporting the party’s position. Submissions should be no longer than 5 pages (including annexures) and be easily legible using a font size of at least 12 points and one and a half line spacing throughout.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    The first respondent, the Australian Community Pharmacy Authority, is a statutory authority established under s 99J of the National Health Act 1953 (Cth). The Authority’s functions (pursuant to s 99K of the National Health Act) include making recommendations to the second respondent, now known as the Secretary of the Department of Health, in relation to applications made under s 90 of the National Health Act. Such applications include applications to supply pharmaceutical benefits from particular premises.

2    Choice Pharmacy Vincentia Pty Ltd, the applicant in these proceedings, is the proprietor of a pharmacy business which is approved to supply pharmaceutical benefits from premises at Shop 21 Vincentia Marketplace, 8 Moona Creek Road, Vincentia, New South Wales. It has operated that business since 11 December 2015.

3    The Vincentia Medical Centre is located at 5 Halloran Street, Vincentia, New South Wales, approximately 150 metres from where Choice Pharmacy operates its business.

Background

4    On 30 March 2017, the third respondent, Vincentia MC Pharmacy Pty Ltd, applied to the Secretary pursuant to s 90 of the National Health Act for approval to supply pharmaceutical benefits from premises at the Medical Centre. MC Pharmacy is not in common ownership with the Medical Centre.

5    The application sought approval in accordance with the provisions of Item 136 (New pharmacy in a facility (large medical centre)) of Part 2, Sch 1 to the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (2011 Rules). The term “large medical centre” is defined in s 5(1) of the 2011 Rules as follows:

large medical centre means a medical centre that:

  (a)    is under single management; and

  (b)    operates for at least 70 hours each week; and

(c)    has one or more prescribing medical practitioners at the centre for at least 70 hours each week.

6    On 4 April 2017, the Secretary referred the application to the Authority for the purpose of obtaining a recommendation as to whether or not the application should be approved.

7    On 9 June 2017, the Authority decided to recommend to the Secretary that MC Pharmacy’s application be approved. On 13 June 2017, the Authority advised MC Pharmacy of its decision to recommend to the Secretary that its application be approved.

8    On 28 September 2017, Choice Pharmacy requested that the Authority provide it with a statement of reasons in relation to its determination to recommend to the Secretary that MC Pharmacy’s application be approved, relying on s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The statement of reasons was provided to Choice Pharmacy by the Authority on 26 October 2017. It consists of 71 paragraphs of which [24]-[31] are relevant to these proceedings:

136(1) - The proposed premises are in a large medical centre

24.    The Authority considered the Application form, dated 30 March 2017, and the Council approved plans, approved 10 March 2015, provided at Annexure 3 of the Application.

25.    The Authority found that the proposed premises were situated in a medical centre located at 5 Halloran Street, Vincentia, NSW, 2540.

26.    The Authority considered the Statutory Declaration made by a representative of the Centre on 30 March 2017, provided at Annexure 4 of the Application, the Statutory Declaration made by a representative of the Centre on 4 May 2017, as attached to the email from the Applicant's representative, dated 4 May 2017, and the Statutory Declaration made by a representative of the Centre on 31 May 2017, attached to the email from the Applicant's representative, dated 1 June 2017.

27.    ...

28.     The Authority also found that it was declared that the Centre is open 70.5 hours per week, being Monday to Thursday 7.30am to 8.00pm, Friday 7.30am to 6.00pm and Saturday and Sunday 9.00am to 2.00pm, and that there are one or more prescribing medical practitioners providing general practice services at the Centre for at least 70.5 hours per week.

29.    The Authority considered the attachment to the Statutory Declaration made by the representative of the Centre on 30 March 2017, being rosters for the Centre for the period 30 January 2017 to 31 March 2017, the attachment to the Statutory Declaration made by the representative of the Centre on 4 May 2017, being rosters for the Centre for the period 27 February 2017 to 4 May 2017, and the attachment to the Statutory Declaration made by the representative of the Centre on 31 May 2017, being the rosters for the Centre for the period 1 May 2017 to 8 June 2017.

30.    The Authority found that the proposed premises are in the Centre, the Centre is under single management, operates for at least 70 hours each week, and has one or more prescribing medical practitioners at the Centre for at least 70 hours each week.

31.    The Authority was satisfied that, based on the information provided, the proposed premises are in a large medical centre.

9    As noted in the statement of reasons at [26], there were three statutory declarations provided in support of the application. Each included a paragraph as follows:

The Vincentia Medical Centre is open 70.5 hours per week. The operating hours of Vincentia Medical Centre are:

Vincentia Medical Centre is only open on selective public holidays.

10    The Secretary approved the application under s 90 of the National Health Act on 4 December 2017.

11    At the partial hearing of Choice Pharmacy’s application referred to at [13] below, counsel for MC Pharmacy conceded that, based on rosters provided to the Authority, the evidence before the Authority was that the Medical Centre was not open on public holidays between 30 January 2017 and the first week of June 2017 (evidence period). Those public holidays were 14 to 17 April 2017 (inclusive) (Easter) and 25 April 2017 (Anzac Day). Accordingly, in the weeks on which those public holidays fell, fewer than 70 hours were worked at the Medical Centre.

12    Counsel for MC Pharmacy also conceded that, as a matter of fact, the Medical Centre was also not open on any of the public holidays which fell on 25 and 26 December 2016, 1, 2 and 26 January 2017 and the Queen’s Birthday on 12 June 2017, but that information was not before the Authority when it made its recommendation. That concession would only have relevance if the Court found that the requirement that a medical centre operate at least 70 hours each week is a jurisdictional fact.

Application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth)

13    By an amended originating application dated 31 January 2019, Choice Pharmacy sought judicial review of the Authority’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), and orders quashing both the Authority’s recommendation and the Secretary’s approval.

Grounds to be determined

14    Following agreement between the parties, the Court ordered that grounds 1, 2 and 2A of the amended application be heard before the other grounds set out in the amended application by way of a partial hearing. Those grounds are as follows (as written):

GROUND 1

S 5(i)(d) [scil s 5(1)(d)] ADJR Act - the decision was not authorised by the enactment in pursuance of which it was made

The decision was not authorised by the enactment in pursuance of which it was purported to be made because the Application did not meet the requirements of the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (PB65 of 2011) (‘the Rules’), which requirements must be met before an application can be recommended for approval by the First Respondent and which required, in the circumstances, that the Application be recommended not approved.

GROUND 2

S 5(1)(e) and S 5(2) ADJR Act - the decision was an improper exercise of the power conferred

Further, or in the alternative, the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made and/or the decision involved an error of law or was otherwise contrary to law because the Application did not meet the requirements of the Rules.

GROUND 2A

S5(1)(h) and S5(3) ADJR Act - that there was no evidence or other material to justify the making of the decision

Further, or in the alterative, the First Respondent based the decision on the existence of a particular fact namely, that the Proposed Premises were located in a large medical centre (as relevantly defined) and that fact did not exist.

15    Each of the above grounds was particularised by reference to the statutory framework as follows:

Particulars

(a)    Section 90 of the National Health Act 1953 (Cth) (‘the [National Health Act]’) provides, inter alia:

(i)    for the making of applications to the Second Respondent for approval to supply pharmaceutical benefits at particular premises;

(ii)    that the Second Respondent, subject to exceptions not relevant here, must refer the application to the First Respondent

(iii)    that the Second Respondent may approve the application, but only if the First Respondent has recommended that the application be approved.

(b)    Section 99K of the [National Health Act] provides that:

(i)    it is the function of the First Respondent to consider applications to supply pharmaceutical benefits from particular premises and to make a recommendation to the Second Respondent as to whether or not the application should be approved; and

(ii)    in making a recommendation the First Respondent must comply with the Rules determined under section 99L of the [National Health Act].

(c)    Section 11 of the [2011] Rules provides that the First Respondent must recommend that an application not be approved under section 90 of the [National Health Act] if a requirement under paragraph 10(a) or (b) of the [2011] Rules that applies in relation to the application is not met.

(d)    The Application was made pursuant to Item 136 of the [2011] Rules, which required that the facility in which the Proposed Premises are to be situated, is a 'large medical centre', as that term is defined in the [2011] Rules.

(e)    Section 5 of the [2011] Rules relevantly defines a “large medical centre” as a medical centre that:

i.    is under single management; and

ii.    operates for at least 70 hours each week; and

iii.    has one or more prescribing medical practitioners at the centre for at least 70 hours each week.

(f)    At the time the decision was made, the facility situated at 5 Halloran Street, Vincentia (“the Centre”) in which the Proposed Premises were to be located did not:

i.    operate for at least 70 hours each week;

ii.    have one or more prescribing medical practitioners at the centre for at least 70 hours each week

and the First Respondent was required by section 11 of the [2011] Rules to recommend that the Application not be approved.

16    At the hearing, counsel for Choice Pharmacy clarified that:

(1)    Its contention is that “each week” goes beyond “a week” to mean “each and every week”. Choice Pharmacy submitted that “each” should be given its literal meaning; there is no ambiguity in the term so there is no need to go to extrinsic material to ascertain its meaning. The terms “70 hours” and “each week” are well known measurements of time which are easily and objectively ascertainable. The Macquarie Dictionary gives the example of “each” as being “as in each stone in a building”. If the Court needs to go to extrinsic material, the extrinsic material supports the interpretation for which it contends.

(2)    Ground 2 relies on the contention that the Authority failed to take into account the relevant consideration that the rosters provided to it demonstrated that, in the evidence period, the Medical Centre did not operate at least 70 hours in those weeks in which a public holiday fell.

(3)    Ground 2A relied on s 5(3)(b) of the ADJR Act, rather than s 5(3)(a).

17    Because the evidence shows that the Medical Centre did not, in fact, operate for 70 hours in each week of the evidence period, Choice Pharmacy says that:

(1)    Whether or not the Medical Centre is a “large medical centre” as defined in s 5 of the 2011 Rules is a jurisdictional fact.

(2)    The Medical Centre does not meet the requirements of paragraphs (b) and (c) of the definition of “large medical centre” in s 5 of the 2011 Rules because it did not operate for at least 70 hours in each week or have one or more prescribing medical practitioners at the Medical Centre for at least 70 hours each week.

(3)    On the evidence, it was not open to the Authority to make the finding at [31] of its statement of reasons and its recommendation to approve the application was beyond its power to make. The Authority was required by s 11 of the 2011 Rules to recommend to the Secretary that the MC Pharmacy’s application not be approved.

18    Consistently with the way the parties made their submissions, in considering these grounds, there were two central issues:

(1)    The proper construction of the words “at least 70 hours each week” in ss 5(b) and (c) of the 2011 Rules; and

(2)    Whether the requirements in ss 5(b) and (c) of the 2011 Rules are jurisdictional facts in the narrow sense, such that this Court can decide for itself whether the requirements were met in this case.

The legislative scheme

19    Division 2 of Part VII of the National Health Act deals with the supply of “pharmaceutical benefits” by the Australian Government. As noted by the Court in Slopen Main Pty Ltd (Trustee) v Hope [2017] FCAFC 203; 256 FCR 156 (Hope FC) at [4] (Griffiths, Mortimer and Bromwich JJ), pharmaceutical benefits facilitate the supply of pharmaceutical products to consumers at a reduced price, subsidised under the Pharmaceutical Benefits Scheme (PBS). While a pharmacist (and therefore a pharmacy) can supply pharmaceutical products without approval by the Secretary, a pharmacy cannot supply pharmaceutical benefits without that approval.

20    Section 90 of the National Health Act sets out the scheme for approval of pharmacists to supply pharmaceutical benefits from particular premises. Relevantly to these proceedings, s 90 provides as follows:

90 Approved pharmacists

(1)    Subject to this section, the Secretary may, upon application by a pharmacist for approval to supply pharmaceutical benefits at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at those premises.

...

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

(3AA)    Subsection (3A) does not apply to an application for an approval arising out of a change in the ownership of a pharmacy situated at particular premises if the change results or resulted from:

   (a)    the sale of the pharmacy; or

(b)    the acquisition, following the death of a person who was the owner or one of the owners of the pharmacy, of that person’s interest in the business of the pharmacy; or

   (c)    a change in the constitution of a partnership that owned the pharmacy;

if the pharmacy is to continue to operate at the same premises.

(3AB)    In subsections (3AA) and (3AE):

pharmacy means a business in the course of the carrying on of which pharmaceutical benefits are supplied.

…

(3AE)    Subsection (3A) does not apply to an application for an approval if:

(a)    the application arises out of an expansion or contraction of particular premises (the original premises) at which a pharmacy is situated; and

(b)    the expanded or contracted premises occupy any of the space occupied by the original premises.

(3F)    However, the Secretary may, at his or her discretion, refer to the Authority an application referred to in subsection (3AE).

(3B)    An approval may be granted under this section in respect of an application that has been referred to the Authority under subsection (3A) … 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.

…

(3D)    The Secretary must not grant approval under this section to a pharmacist in respect of particular premises if the Secretary is satisfied that on or after the day the approval would otherwise be granted:

(a)    the pharmacist would be unable to supply pharmaceutical benefits at the premises; or

(b)    the premises would not be accessible by members of the public for the purpose of receiving pharmaceutical benefits at times that, in the opinion of the Secretary, are reasonable.

21    The Authority’s functions are set out in s 99K of the National Health Act as follows:

99K Functions

(1)    The functions of the Authority are:

(a)    to consider applications under section 90; and

(b)    to make, in respect of an application under section 90:

(i)     a recommendation whether or not the applicant should be approved under that section in respect of particular premises; and

(ii)    if an approval is recommended—recommendations as to the conditions (if any) to which the approval should be subject; and

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

(3)    All recommendations of the Authority under subsection (1) are to be made to the Secretary.

22    Section 99L of the National Health Act requires the Minister, by legislative instrument, to determine the rules subject to which the Authority is to make its recommendations.

23    Although the 2011 Rules (as amended in 2015) have since been repealed, it is common ground that the 2011 Rules apply to applications made before 3 October 2018, including the application made by MC Pharmacy: see s 12 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2018.

24    Relevantly to this application, s 5 of the 2011 Rules defines “large medical centre”: see [5] above.

25    Section 9 of the 2011 Rules provides as follows:

Information to be considered by Authority

The Authority may consider information provided by an applicant only if:

(a)    the information was given at the time the application was made; or

(b)    the Authority requested the information.

26    Section 10 of the 2011 Rules relevantly provides as follows:

When Authority must recommend approval of applicant

The Authority must recommend that an applicant be approved under section 90 of the Act in relation to particular premises if:

(a)    …

(b)    for any other application:

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

    (ii)    all the requirements set out in column 3 of that item are met; and

    (iii)    all the requirements set out in Schedule 2 are met.

27    MC Pharmacy made its application by reference to Item 136 in Part 2 of Sch 1 to the 2011 Rules, which provides as follows:

28    Section 11 of the 2011 Rules provides as follows:

When Authority must recommend applicant not be approved

The Authority must recommend that an applicant not be approved under section 90 of the Act in relation to particular premises if:

(a)    a requirement, under paragraph 10(a) or (b), that applies in relation to the application is not met; or

(b)    an application involves the cancellation of an existing approval and the existing approval is subject to a recommendation by the Authority that an applicant be approved under section 90 of the Act.

29    Schedule 2 to the 2011 Rules contains general requirements which are not relevant to this proceeding.

Interpretation of “at least 70 hours each week” in ss 5(b) and (c) of the 2011 Rules

Choice Pharmacy’s submissions

30    Choice Pharmacy submitted that the 2011 Rules provide an important, if qualified, limited and bounded, statutory protection for the interests of existing providers of pharmaceutical products: see Hope v Australian Community Pharmacy Authority [2016] FCA 1597 (Hope) at [104] (Kerr J), relying on Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273; 230 FCR 243 (Walkerden) at [62] (Mortimer J) as follows:

Clearly the objectives of the 2011 Rules, as set out in cl 1.2(d)(vi) of the fifth Agreement, are of principal relevance to the construction issues on this application. Those objectives have twin themes: a sustainable and viable community pharmacy network (which focuses at least as much on the interests of pharmacy owners as on the community) and access to pharmaceutical benefits (with a focus only on the community’s interests). In that sense, the location rules are an attempt to balance community access with commercial sustainability.

(Her Honour’s reference to “fifth Agreement” will be discussed later in these reasons.)

31    Choice Pharmacy submitted that the phrase “operates at least 70 hours each week” in s 5(1)(b) of the 2011 Rules is clear and unambiguous. It is a requirement that a medical centre operates for at least 70 hours each week in order to be a “large medical centre”. An interpretation of the term “each week” as “some weeks”, “on average”, “usually”, “except weeks with a public holiday” or any other variation is simply not permitted by “the statute”. While ss 5(b) and (c) of the 2011 Rules do not require that that the medical centre be open on public holidays or every day of the week, those paragraphs ultimately require that it be operating for at least 70 hours each week.

32    Choice Pharmacy submitted that the legislative history of the definition of “large medical centre” demonstrates a tightening of the operating hours requirements relating to “large medical centres”. Counsel for Choice Pharmacy noted the following matters.

33    First, s 6 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 (2006 Rules) defined a “large medical centre” as being a medical centre under single management “that operates for at least 55 hours each week” (emphasis added).

34    Second, the definition of “large medical centre” was amended by the National Health (Australian Community Pharmacy Authority Rules) Amendment Determination 2009 (No 1) (2009 Rules) to read as follows (emphasis added):

large medical centre means a medical centre that:

  (a)    is under single management; and

  (b)    operates for at least 70 hours a week; and

(c)    has one or more prescribing medical practitioners at the centre for at least 70 hours a week.

35    The Explanatory Statement relating to the 2009 Rules explained this amendment as follows (at p 4) (emphasis added):

Paragraph 3 amends the definition of “large medical centre” by requiring that the medical centre is open for at least 70 hours each week and that general practice services are provided at the medical centre during those hours. The intention of having a pharmacy in a large medical centre is primarily to meet the needs of medical centre patients outside normal business hours, where nearby pharmacies have closed. This amended definition ensures that the medical centre is operating extended hours.

Choice Pharmacy submitted that such an intention would be thwarted if the medical centre was required to be operating outside normal business hours for only some weeks of the year.

36    Third, counsel for Choice Pharmacy noted that the 2011 Rules amended the 2006 [scil 2009] Rules and changed the relevant definition of “large medical centre” from “operates for at least 70 hours a week” to the current relevant definition of “operates for at least 70 hours each week”. Counsel for Choice Pharmacy observed that the Explanatory Statement relating to the 2011 Rules made no specific mention of this change in wording but that (at p 16) it reiterated the intention that the “large medical centre” category is designed “primarily to meet the needs of medical centre patients outside normal business hours, when nearby pharmacies have closed”. It was further submitted that the change in wording from “a” to “each” provides for “a more stringent application of the requirement of the operating hours without ambiguity”.

37    Fourth, Choice Pharmacy further submitted that amendments made to the 2011 Rules in relation to the definition of “full-time” by force of the National Health (Australian Community Pharmacy Authority Rules) Amendment Determination 2015 (No 1) (2015 Amendment) offered interpretative guidance in relation to the term “each week”:

(1)    While the definition of “large medical centre” in the 2011 Rules was not amended, the 2015 Amendment amended the definition of “full-time” in relation to a “prescribing medical practitioner” and a “PBS prescriber” from “...38 hours each week” to “…38 hours in a week”. According to the relevant part of the Explanatory Statement (at p 3):

The inserted definition of “full time” allows, for example, consideration to be given when a public holiday falls during the period that a “full time” prescribing medical practitioner or PBS prescriber is required to be practicing. It does this by removing the phrase “for at least 38 hours each week” and substituting “for 38 hours in a week.

(2)    It was submitted that the fact that no such alteration or flexibility was introduced to the definition of “large medical centre” in 2015, even though it was clearly available when the 2011 Rules were be amended, is instructive. Given its plain meaning “each week” does not permit public holidays to be taken into account in determining the operating hours of a medical centre. The purpose of the 2011 Rules is met by that meaning of “each week” and not by the “flexible” construction propounded by MC Pharmacy.

MC Pharmacy’s submissions

38    MC Pharmacy submitted that:

(1)    To assert that “each week means each week” is circular or conclusionary.

(2)    The words “70 hours each week” used in the definition of “large medical centre” are ordinary English words, with nothing to suggest that they have any “trade” or technical meaning. As a matter of ordinary English, they are capable of being understood as having any of a range or meanings; that is, they admit of “shades” of meaning.

(3)    The expression “X hours each week” can be used quite comfortably and naturally to mean generally, in the ordinary course, or habitually, even though the number of hours in a given week may vary and may, in some weeks, be less than “X”. MC Pharmacy labelled this the “flexible” construction. An example would be for a full-time employee to say that she or he works “37.5 hours each week”, even though, in particular weeks, due to public holidays or the taking of annual leave or sick leave, she or he may in fact work fewer hours than that.

39    MC Pharmacy accepted that one of the possible shades of meaning that the expression “at least 70 hours each week” may bear as a matter of ordinary English is that contended for by Choice Pharmacy: that the medical centre operates at least 70 hours every week, without exception. MC Pharmacy termed this the “absolute” or “inflexible” construction.

40    MC Pharmacy relied on Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ) and Cunneen v Independent Commissioner Against Corruption [2015] HCA 14; 256 CLR 1 at [57] to submit that it is necessary to construe Item 136 in its context and having regard to the objects of the statutory scheme of which the 2011 Rules form part, recognising that the 2011 Rules are subordinate legislation. It says that, on that basis, the “flexible” construction is to be preferred.

41    MC Pharmacy submitted that:

(1)    The intention of having a pharmacy located in large medical centres as set out in the Explanatory Statement to the 2009 Rules (see [35] above) does not support Choice Pharmacy’s preferred inflexible construction. Fulfilling the purpose set out in the Explanatory Statement does not require that the medical centre be open at least 70 hours every single week, “irrespective of illness, public holidays or other contingencies”.

(2)    The purpose revealed by the Explanatory Statement to the 2009 Rules is not to ensure that a medical centre is open for a fixed amount of hours each week, but rather to ensure that where a medical centre is operating extended hours there is a pharmacy within the medical centre available to provide pharmacy services to people “outside normal business hours” when other nearby pharmacies may otherwise be closed.

42    MC Pharmacy accepted that the expression “at least 70 hours each week” must bear the same meaning in paragraphs (b) and (c) of the definition of “large medical centre” in s 5 of the 2011 Rules. On the “inflexible” construction, a medical centre would fail the definition of “large medical centre” if it ever operated for fewer than 70 hours in a week or failed to have at least one medical practitioner at the centre for at least 70 hours in a week, no matter the cause. The “inflexible” interpretation produced absurd results. Examples include:

(1)    Where the medical centre ordinarily operates for 10 hours a day, seven days a week, with only one doctor rostered on Sunday. On Sunday, the rostered medical practitioner becomes unexpectedly ill and leaves the centre after having worked only 8.5 hours.

(2)    Where a medical centre ordinarily operates for 11 hours per day, every single day of the year (that is, 77 hours per week) but it must be evacuated (say, due to a bomb threat, biohazard or fire) on the last day of one particular week, with the consequence that the centre is unable to operate for that day and 11 hours are thereby lost.

(3)    Where a medical centre is open for 10 hours per day, every day of the year except Christmas Day.

43    MC Pharmacy submitted consideration of those real world consequences of the “inflexible” interpretation demonstrates that it does not serve the evident purpose of the National Health Act and the 2011 Rules which is to make access to a pharmacy available to patients of a medical centre which usually operates during extended hours at a time when other pharmacies are ordinarily closed. That demonstrates that the “flexible” interpretation is to be preferred.

Authority’s submissions

44    Counsel for the Authority noted that the Authority’s role in the proceedings is limited due to the fact that MC Pharmacy acts as a contradictor to Choice Pharmacy’s application: see Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 at [54]. No submission was made by the Authority which bore upon any factual issue in dispute between Choice Pharmacy and MC Pharmacy.

45    Acknowledging the submissions filed by Choice Pharmacy and MC Pharmacy on the question of construction of the expression “operates for at least 70 hours each week”, the Authority accepted all matters raised in those submissions as relevant to the Court’s determination. So as to assist the Court, the Authority wished to raise the following additional matters.

46    This is not a case capable of resolution by reference to the literal meaning of the words of ss 5(b) and (c) of the 2011 Rules without the relevant context. The words “each week” bear more than one possible meaning.

47    Choice Pharmacy’s preferred construction effectively calls on the Court to read the words “and every” into the 2011 Rules so as to construe the requirement as if it read: the medical centre must operate for “70 hours each and every week”. The circumstances in which the Court is permitted to insert words into a statutory provision are discussed in Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 at [36]-[40].

48    Choice Pharmacy’s submissions draw attention to the history of the definition of “large medical centre”. It may be useful to observe that:

(1)    The amendment effected by the 2009 Rules was to change the number of hours from 55 (in the 2006 Rules) to 70 (in the 2009 Rules). Both used the term “a week”. Accordingly, the Explanatory Statement relating to the 2009 Rules provides no assistance. The Court notes that this submission is not accurate in that the 2006 Rules used the term “each week” and the 2009 Rules used the term “a week”.

(2)    The amendment effected by the 2011 Rules was to change “a week” to “each week”.

(3)    The Explanatory Statement relating to the 2009 Rules does not really assist in addressing the current issue because the amendments only related to the minimum number of hours of operation. The real question is whether the change of wording made in 2011 from “at least 70 hours a week” to “at least 70 hours each week” has any impact in meaning. The Explanatory Statement relating to the 2011 Rules (issued before their introduction in 2011) does not address the change. The absence of comment alone may suggest that the change was not intended to have any substantive effect on the operation of the 2011 Rules. The Court should not infer any intended change in the operation of a statutory provision where it relates only to drafting style: see Minister for Immigration and Border Protection v Kumar [2017] HCA 11; 260 CLR 367 at [20] (Bell, Keane and Gordon JJ); s 15C of the Acts Interpretation Act 1901 (Cth). The question is whether the change is more than drafting. There is no judicial authority in relation to the operational hours requirement in the definition of “large medical centre”. This, therefore, is not a case where the change could be said to reflect a deliberate decision on the part of the drafter to depart from a settled judicial interpretation of a provision: Baini v The Queen [2012] HCA 59; 246 CLR 469 at [43] (Gageler J).

(4)    The Authority does not rely on the discussion of the relevance of the decision in Ranallo v The Australian Community Pharmacy Authority [2009] FCA 113; 174 FCR 457 at [49] (McKerracher J) in its written submissions at [19], acknowledging those submissions to be incorrect.

(5)    The Authority accepts that, on one view, the explanation of the change to the definition of “full-time” in the 2011 Rules which occurred in 2015 (from “38 hours each week” to “38 hours a week”) as explained in the Explanatory Statement in relation to the 2015 Amendment (that is, to take account of public holidays, see [37] above) supports Choice Pharmacy’s preferred interpretation of “each week”. However, there are two possible difficulties. First, as said above, the change to the definition of “large medical centre” in the 2011 Rules was unexplained so that it is unclear whether the change was made to effect a substantive change or for clarification. Second, there is real difficulty in employing extrinsic material which came into existence after 2011 in relation to the definition of a different term (“full-time”) to assist in the interpretation of an amendment to the definition of “large medical centre” made in 2011.

Consideration

49    The 2011 Rules are subordinate legislation and their construction must have regard to the terms and purpose of the National Health Act from which they derive (see Master Education Services Pty Limited v Ketchell [2008] HCA 38; 236 CLR 101 at [19]). In Walkerden, Mortimer J made a number of observations about the approach to construing the 2011 Rules in the context of s 90, 99K and 99L of the National Health Act, which are referred to below and which the Court respectfully adopts.

50    After setting out the relevant parts of ss 90 and 99K of the National Health Act, in Walkerden at [12], Mortimer J observed that much of the substantive content governing the approval and non-approval of applications to supply pharmaceutical benefits from particular premises is left by the legislative scheme to be done in the 2011 Rules. Her Honour found that what is apparent from the terms of s 90 is that the scheme is “location-based”. In saying that, Mortimer J relied on comments made in a slightly different context by Jessup J in Yu v Minister for Health (No 2) [2013] FCA 367; 216 FCR 188 at [10] where his Honour said:

… approvals under s 90 or s 90A are not given as benefits or emoluments to particular pharmacists. Rather, the scheme of the [National Health Act], relevantly, is to ensure that the community is provided with convenient access to pharmacies, conducted by appropriately qualified professionals, for the purpose of obtaining drugs and medicinal preparations which are beneficial in the treatment of sickness or disease but which may, at the same time, be harmful if not properly prescribed and dispensed.

51    In Walkerden at [13], Mortimer J then observed that, in accordance with the content of the legislative scheme, as filled out by the 2011 Rules, it is the appropriateness of a new pharmacy in the particular location which is the focus of the decision-making process. While the location of other pharmacies is given consideration, it is the community’s need for adequate and sustainable access to pharmaceutical benefits which is the focus against which new applications are to be assessed according to criteria designed to advance that objective. Her Honour found that the terms of s 90(3D) of the National Health Act and the Community Pharmacy Agreements (the latter will be discussed later in these reasons) support that view.

52    In Walkerden at [50], Mortimer J observed that there is nothing in the rule-making power under s 99L of the National Health Act which indicates any general or specific purpose which should attach to the making of determinations (such as the 2011 Rules) under that power nor do the 2011 Rules themselves contain a statement of purposes.

53    At [59] of Walkerden, Mortimer J observed that there is a danger where constructional choices are made by reference to extrinsic material (such as the Explanatory Statement to the 2011 Rules and the Urbis Report referred to in it) rather than to the legislative provision itself. Her Honour noted that in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ) the High Court said (footnotes omitted):

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

54    At [60] of Walkerden, Mortimer J found that a surer guide to the construction of the 2011 Rules was to look at the “fifth Community Pharmacy Agreement”. The Community Pharmacy Agreements formed part of the settlement of a long-running policy dispute between the Federal Government and the Pharmacy Guild of Australia about remuneration for pharmacists dispensing prescriptions under the PBS and the restructuring of the pharmaceutical industry in Australia: see Smoker v Pharmacy Restructuring Authority [1994] FCA 859; 53 FCR 287 at 293-294 and 300-301 (Hill J); Pharmacy Restructuring Authority v Chatfield K.N. [1993] FCA 495; 43 FCR 418 at 429, 433 (French J). A description of some of the litigation which led, eventually, to the Agreements can be found in Commonwealth v Crowe [1992] FCA 873; 39 FCR 435 (Neaves, Gummow and French JJ). The first of these Agreements was signed in December 1990, and there were consequential amendments to the National Health Act, including the introduction of s 99L, so that effect could be given to the terms of the Agreement whereby, among other matters, “Location Rules” for pharmacies would be promulgated.

55    At [61] of Walkerden, Mortimer J noted that the 2011 Rules resulted from the conclusion of the fifth Community Pharmacy Agreement and her Honour set out the text of clause 1.2 of the Agreement. Clause 1.2(d) was as follows:

The principles and objectives of this Agreement are to:

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

ii.    ensure that the Programs are patient-focused and target areas of need in the community including continued improvement in community pharmacy services provided to Aboriginal and Torres Strait Islander people;

iii.    ensure transparency and accountability in the expenditure of the Funds;

iv.    promote the sustainability and efficiency of the PBS within the broader context of health reform and ensuring that community resources continue to be appropriately directed across the health system, while also supporting the sustainability and viability of an effective community pharmacy sector;

v.    maintain a co-operative relationship between the Commonwealth and the Guild; and

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

•    all Australians have access to PBS medicines;

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

•    improved efficiency through increased competition between pharmacies;

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

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

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

e.    The initiatives covered by this Agreement result in $1 billion in savings over the Term of the Agreement against the Commonwealth forward estimates. Those savings have been agreed by the parties in the context of extraordinary economic and budgetary circumstances.

f.    The Commonwealth will deliver $15.4 billion under the Agreement as set out in the following table: […].

56    As noted previously, in Walkerden at [62]-[63], Mortimer J found that “clearly” the objectives of the 2011 Rules, as set out in cl 1.2(d)(vi) of the fifth Community Pharmacy Agreement, were of principal relevance to the construction issues on that application. Those objectives have twin themes: a sustainable and viable community pharmacy network (which focuses at least as much on the interests of pharmacy owners as on the community) and access to pharmaceutical benefits (with a focus only on the community’s interests) but that was the most that could be gleaned from them.

57    The Court accepts the Authority’s submission that, although the 2011 Rules seek to balance the interests of the community, the Commonwealth as the provider of pharmaceutical benefits, and pharmacists, it would be a mistake to construe the 2011 Rules as if their purpose were the protection of commercial interests of existing pharmacies. Rather, it is concerned with balancing the Commonwealth’s financial burden against the need for an acceptable level of community service, relying on Assarapin v Australian Community Pharmacy Authority [2016] FCAFC 9; 239 FCR 161 at [41]; Kong v Minister for Health [2014] FCAFC 149; 227 FCR 215 at [96]-[97] (Jacobson J); Stambe v Minister for Health [2019] FCA 43 at [41]-[42] (Mortimer J).

58    The structure of each of the 2006, 2009 and 2011 Rules made under s 99L set out categories of locations from which a pharmacy may seek approval to supply pharmaceutical benefits. Each category sets out particular requirements which must be met to found a recommendation by the Authority to the Secretary to approve an application by a pharmacy. By that categorisation, those Rules sought to achieve the balance referred to in [57] above. If the requirements related to the category under which an application is made are not met, the Authority must recommend to the Secretary that an application not be approved (s 11(a) of the 2011 Rules) and the Secretary must then not approve the application (s 90(3B) of the National Health Act).

59    The 2009 Rules changed the definition of “large medical centre” from one which was under “single management” and “operates at least 55 each week” which appeared in the 2006 Rules to a more stringent definition, which required that the medical centre be under “single management”, “operates at least 70 hours a week” and “has one or more prescribing medical practitioners at the centre for at least 70 hours a week”. This amendment related to Item 112. The Explanatory Statement to the 2009 Rules explained this amendment as follows (emphasis added):

Paragraph 3 amends the definition of “large medical centre” by requiring that the medical centre is open for at least 70 hours each week and that general practice services are provided at the medical centre during those hours. This definition relates to Item 112, paragraph 1, which requires that the proposed premises must be located in a “large medical centre”. The intention of having a pharmacy in a large medical centre is primarily to meet the needs of medical centre patients outside normal business hours, when nearby pharmacies have closed. This amended definition ensures that the medical centre is operating extended hours.

Irrespective of the hours that the medical centre operates or the number of medical practitioners rostered on during those hours, general practice services must be provided at the medical centre for [at] least 70 hours each week. If the medical centre closes for an hour over lunchtime then that hour is not counted towards the time that the medical centre is providing general practice services, as patients are unable to obtain a consultation with a medical practitioner during that hour.

Where more than one medical practitioner’s hours overlap then the total hours that the medical centre is providing general practice services is not the combined hours of the medical practitioners, it is instead the total hours that the centre is providing general practice services.

60    It is notable that the Explanatory Statement for the 2009 Rules uses the words “each week”, even though the 2009 Rules employed the term “a week”, in contrast to the 2006 Rules. Also notable is the substantial extension of the required weekly hours (from 55 to 70) and the italicised language which suggests that 70 hours is intended to be read strictly, not to include lunch times and not to take into account overlapping hours worked by prescribing medical practitioners.

61    The 2011 Rules changed the definition of “large medical centre” only by changing the words “at least 70 hours a week” to read “at least 70 hours each week” and that change was not explained. The requirement that the proposed premises be in a “large medical centre” was included in sub-item 1 of the new Item 136. The Explanatory Statement to the 2011 Rules (at p 15) states the purpose of Item 136, noting that it applies to applications for a “new approval in a large medical centre” and that:

It aims to facilitate timely and convenient access to the supply of pharmaceutical benefits for patients of large medical centres that operate extended hours and also recognises the multidisciplinary health services that large medical centres may provide, for example, by dental practitioners or nurse practitioners approved to prescribe PBS medicines.

62    The explanation for the requirement that the pharmacy be located in a “large medical centre” has the same explanation as that italicised in the excerpt from the Explanatory Statement to the 2009 Rules set out at [59] above. It is notable that the requirement that the proposed premises of the pharmacy be located in a large medical centre is one of a number of requirements of Item 136. Sub-item 4 (taken with sub-item 5 as originally enacted) required that the Authority be satisfied that during the two months before the application was made and two months before the application is considered by the Authority there be equivalent to at least 8 full-time PBS prescribers of which 7 are prescribing medical practitioners. Since 2015, the requirement is found in sub-item 4 and requires that the Authority be satisfied that during the period of two months before the application is made and up to the time it considers the application there are the equivalent of the required number of full-time PBS prescribers. Those requirements indicate that it is intended that the pharmacy be located where there is a substantial demand generated by the presence of prescribing medical practitioners and other PBS prescribers. Sub-item 6 (as Item 136 was then drafted, now sub-item 5) requires that the Authority is satisfied that the applicant will make all reasonable attempts to ensure that the proposed hours of the pharmacy’s operation will meet the needs of the patients at the medical centre.

63    The Court accepts the submissions that the term “operates at least 70 hours each week” used in s 5 (b) of the definition of “large medical centre” is capable of bearing more than one meaning and is, to some extent, evaluative. This is because there is nothing in Item 136 (or the 2011 Rules more broadly) which indicates for what period the medical centre must meet the test and the term “operates” is not defined. In the Court’s view the word “operates” is important in the phrase “operates at least 70 hours each week”, and it is notable that it does not feature in the submissions made by MC Pharmacy which seeks to equate “70 hours each week” with phrases commonly used to described an employee’s working hours, which is an entirely different context. The context of Div 2 of Part VII of the Health Services Act and its subordinate legislation (and Item 136 in particular) is the provision of pharmaceutical benefits conveniently to a location at which services of at least eight full-time equivalent PBS prescribers are provided over extended hours during a week. There is nothing in that context that suggests that public holidays should be taken into account in such a way that would mean that the medical centre does not operate fewer than 70 hours each week.

64    Section 5(c) also requires some evaluation, although it is arguably clearer in its requirement that there be at least one prescribing medical practitioner “at the centre for at least 70 hours each week” and the Explanatory Statements to the 2009 and 2011 Rules make it clear that the intention is that someone be working (that is, not at lunch) in each of the 70 hours and that an hour only be counted once no matter how many prescribing medical practitioners are working during it. These features are indicative of an intention that “at least 70 hours each week” be read strictly.

65    Even though changes to the terms “each week” (2006 and 2011 Rules) and “a week” (2009 Rules) were made without comment and apparently interchangeably, the Explanatory Statements to both the 2009 and 2011 Rules and the express terms of Item 136 indicate that it is intended that the medical centre whose patients the pharmacy will serve will be open at a time suitable to those patients having regard to the prescribing medical practitioner’s extended working hours so that the patients can have convenient access to the supply of pharmaceutical benefits. That militates towards a more strict interpretation of “at least 70 hours each week” than that contended for by MC Pharmacy. It is unnecessary (and likely inappropriate) to resort to changes in the definition of a different term, “full-time”, which occurred after 2011 to interpret the meaning of “at least 70 hours each week”.

66    The words “at least 70 hours each week” in ss 5(b) and (c) of the 2011 Rules should be given a meaning consistent with the context in which they occur having regard to the purpose for which Item 136 is designed. The phrase is not a term of art. There is nothing in the National Health Act or the 2011 Rules which indicates an intention to create exceptions or suggests that “each week” should not have a plain meaning.

67    In the Court’s view, the meaning to be derived from “at least 70 hours each week” in ss 5(a) and (b) is a requirement that the ordinary and habitual hours in which the medical centre operates and a prescribing medical practitioner will be in attendance are at least 70 hours in each consecutive period of seven days. This is what the evidence before the Authority should demonstrate, for whatever period the Authority elects to receive evidence. This interpretation serves the purpose of Item 136 by ensuring that in each week, the medical centre operates with the services of a prescribing medical practitioner during extended business hours. The purpose of creating a category for approvals related to “large medical centres” is to meet the demand for dispensing of PBS medicines that such centres generate. That purpose would be undermined if the “at least 70 hours each week” criterion is not strictly interpreted.

68    A stated intention to operate on some “selected” public holidays, when the usual hours are only 70.5 per week, has the result that on up to eight weeks in a year the medical centre will not operate at least 70 hours each week where (as here) there is no intention expressed to make up the lost hours at other times during the relevant weeks and no evidence that those lost hours were in fact made up in the weeks in which public holidays fell during the evidence period. It demonstrates that the Medical Centre’s operating hours are not ordinarily or habitually at least 70 hours each week or that its intended operation is to have at least one prescribing medical practitioner at the Medical Centre for that period each week, even though it may often do so. In the Court’s view, it would be necessary for there to be express words in the 2011 Rules addressing public holidays to produce the result contended for by MC Pharmacy.

69    The Court does not accept that this interpretation has the effect of reading the words “and every” into ss 5(b) and (c); it gives the words “at least 70 hours each week” their plain meaning in circumstances where there is nothing in the National Health Act or the 2011 Rules which suggests that some other meaning should be adopted. The Court also does not accept that that interpretation operates to frustrate the stated intention of Item 136 in which the definition of “large medical centre” has relevance. The stated intention is that there be a pharmacy available where a medical centre of a particular kind operates outside normal business hours consistent with the 70 hours each week requirement in ss 5(b) and (c) of the 2011 Rules.

70    Contrary to submissions put by MC Pharmacy, this interpretation does not require the conclusion that a medical centre fails to meet the definition of “large medical centre” because its provision of service is interrupted due to some unforeseen circumstance, such as the need to evacuate the building because of a fire, bomb scare or infection risk or some other unforeseen contingency such as sudden illness of a rostered doctor. In the Court’s view, a medical centre which habitually or ordinarily operates at least 70 hours each week will continue to answer that description even if it does not in fact operate for 70 hours in a week on some occasions due to such a contingency. MC Pharmacy’s submissions take the argument to an extreme that the plain meaning of the words “at least 70 hours each week” does not require consistent with the purpose of Item 136 and the broader purposes of the 2011 Rules.

71    The Authority’s statement of reasons is before the Court. The evidence before the Authority and the Court was three statutory declarations sworn by an employee of the Medical Centre in which he advised the Authority that the Medical Centre did not open on “selective public holidays” and MC Pharmacy accepts that that conveyed that the Medical Centre was not “generally” open on public holidays. The rosters attached to the statutory declarations show that the Medical Centre was not open on each of the public holidays between 30 January and 8 June 2017 so that the Medical Centre was not open for at least 70 hours in the weeks the public holidays fell and that is consistent with the concession made by counsel for MC Pharmacy.

72    Although the statement of reasons makes express reference to the existence of the statutory declarations and rosters and the declaration that the Medical Centre opened 70.5 per week, it made no reference to the evidence concerning public holidays. The inference that the Court draws from this is that the Authority did not take into account the relevant consideration that the Medical Centre did not operate for at least 70 hours in weeks with a public holiday during the evidence period and that management of the Medical Centre had expressed an intention that the Medical Centre would generally not be open on public holidays. The absence of comment about public holidays in the statement of reasons indicates that the Authority failed to appreciate the significance of the evidence concerning public holidays because it misconstrued the statutory test in ss 5(b) and (c). That is an error of law having regard to the proper construction of those requirements as found in these proceedings. In light of the requirement in s 11(a) of the 2011 Rules, the Authority was required to recommend that MC Pharmacy’s application not be approved, since it did not meet the definition of “large medical centre” because it did not satisfy ss 5(b) and (c). The Court is satisfied that grounds 1 and 2 of the amended originating application are made out.

73    The Court finds that there was no evidence justifying the Authority’s finding that the Medical Centre operated at least 70 hours each week in light of the proper interpretation of that term. The evidence was that the Medical Centre did not operate and did not have one or more PBS prescribing medical practitioners at the Centre at least 70 hours each week during the evidence period even though the Medical Centre operated and there was one or more prescribing medical practitioners at the Medical Centre for that time in some weeks. It also had evidence that there was an expressed intention that the Medical Centre would generally not be open on public holidays. On that evidence, it was not open to the Authority to find that the Medical Centre did or would operate at least 70 hours each week and have at least one prescribing medical practitioner at the Centre at least 70 hours each week. It was therefore not open to the Authority to find that the Medical Centre was a “large medical centre” as defined in s 5 of the 2011 Rules.

74    MC Pharmacy’s suggestion that, because there was evidence that the Medical Centre met the requirements of ss 5(b) and (c) in the weeks immediately preceding the day on which the application was considered by the Authority and it made its recommendation, there was some evidence that the Centre met the definition of “large medical centre” must be rejected. At the very least, the evidence disclosed that there was a continuing intention that the Medical Centre would not be open in weeks in which a public holiday fell, so that that submission must be rejected. In any event, “each week” is a continuing concept so that the Authority could not discharge its fact finding obligation by reference to only some of the relevant evidence which had been provided by the Medical Centre. Once there was evidence that the Medical Centre did not open on public holidays in that period and its management had a general intention not to be open on public holidays, there was no evidence to support a finding that the Medical Centre is a “large medical centre”. Section 11(a) of the 2011 Rules required the Authority to recommend that the Secretary not approve MC Pharmacy’s application made on the basis that the Medical Centre was a “large medical centre”. The Authority therefore based its findings at [28], [30] and [31] and its recommendation on a critical fact which did not exist. Ground 2A of the amended originating application is made out.

Are the requirements in ss 5(b) and (c) jurisdictional facts?

75    In light of the Court’s findings on the interpretation issue, it is unnecessary for the Court to make a finding on this issue.

Conclusion

76    While, in its written and oral submissions, Choice Pharmacy pressed for the relief it sought in its amended originating application, neither of MC Pharmacy or the Authority made submissions as to relief and only the Authority made submissions concerning costs. The Court notes that, although Choice Pharmacy sought orders quashing or setting aside the decisions made by the Authority and the Secretary, no one sought an order referring the matter to which the decisions relate to either of the Authority or the Secretary.

77    Accordingly, the Court will allow the parties a period of 14 days in which to bring in agreed orders reflecting these reasons and addressing the issues of relief and costs or, alternatively to provide the Court with the orders for which each party contends in light of these reasons and to make short submissions on the appropriate relief and as to costs.

Associate:

Dated:    11 February 2020