Federal Court of Australia

Jele Chemists Pty Ltd v Australian Community Pharmacy Authority [2023] FCA 1652

ORDERS

THE COURT ORDERS THAT:

1.    The Notice of Objection to Competency filed on 3 April 2023 be dismissed.

2.    The Further Amended Originating Application filed on 29 March 2023 be dismissed.

3.    By 4:00 pm AEST on 25 January 2024, the parties are to confer regarding costs.

4.    By 4:00 pm AEST on 2 February 2024, the parties are to file and serve either:

(a)    a joint memorandum; or

(b)    separate written submissions;

on the topic of costs, not exceeding three pages with 12-point font and 1.5 line spacing, together with proposed orders.

5.    In the event that the parties file written submissions, then by 4:00 pm AEST on 9 February 2024, each party may file written submissions in reply, not exceeding two pages with 12-point font and 1.5 line spacing.

6.    The question of costs is to be determined on the papers thereafter, unless either party seek to be heard orally.

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

REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

1    The applicant, Jele Chemists Pty Ltd and the second respondent, Glenvale Pharmacy Pty Ltd operate pharmacies in Glenvale, a suburb of Toowoomba in Queensland.

2    By a Further Amended Originating Application filed on 29 March 2023 the applicant sought judicial review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of a decision made by the first respondent, Australia Community Pharmacy Authority, on 15 July 2022. That decision made a recommendation to the third respondent, the Secretary of the Department of Health and Aged Care, that an application made by Glenvale Pharmacy, pursuant to Sch 1, Pt 2, Item 130 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Cth) to supply pharmaceutical benefits from 662-670 Greenwattle Street, Harristown, Queensland 4350 (Glenvale Premises) be approved.

3    The applicant also sought judicial review pursuant to s 5 of the ADJR Act of a decision of a delegate of the Secretary made on 8 December 2022 pursuant to s 90 of the National Health Act 1953 (Cth) to approve Glenvale Pharmacy’s application to supply pharmaceutical benefits from the Glenvale Premises.

4    On 3 April 2023, Glenvale Pharmacy filed a Notice of Objection to Competency, which contested the applicant’s standing in this proceeding as a "person aggrieved" by the decisions pursuant to s 3(4)(a) of the ADJR Act.

5    For the reasons that follow, the Notice of Objection to Competency and the Further Amended Originating Application are dismissed.

LEGISLATIVE SCHEME

The Act

6    To become an approved pharmacist pursuant to s 90 of the Act, a pharmacist must apply to the Secretary for approval to supply pharmaceutical benefits from a particular premises. Section 90(3A) of the Act provides that when such an application is made the Secretary must refer it to the Authority (with some exceptions).

7    Section 90(3B) of the Act provides that the Secretary may only grant approval if the Authority recommends that such approval should be granted, however the Secretary may also decide not to grant approval even if a recommendation is made by the Authority that approval be granted. Section 90A of the Act sets out the circumstances in which the Minister may substitute a decision of the Secretary for a different decision.

8    The Authority is established by s 99J of the Act, and its functions are described in s 99K of the Act. The Authority, in making recommendations to the Secretary, must comply with any rules determined by the Minister under s 99L of the Act. Pursuant to s 99M of the Act, the Authority has the power to do all things necessary or convenient to be done for the performance of its functions.

The Rules

9    The Rules are established by the Minister pursuant to s 99L of the Act. The intention of the Rules is to limit the Authority's exercise of power in making recommendations to the Secretary, and also to limit the Secretary's power to approve or not approve a pharmacy: Stambe v Minister for Health (2019) 270 FCR 173 at [41] (Mortimer J, as her Honour then was).

10    The Rules do not have an object or purpose provision, however in considering the preceding rules in Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273, Mortimer J (as her Honour then was) at [62] stated that its objectives were as follows:

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.

11    Rule 10 deals with when the Authority must recommend that an applicant be approved and refers to Sch 1 and 2 to the Rules.

12    Schedule 1 of the Rules details the categories of applications that may be considered by the Authority and the requirements which must be met in relation to each category. Part 1 details applications involving cancellation of an existing approval, and Pt 2 details applications not involving cancellation of an existing approval. Item 130, contained in Sch 1 Pt 2, relating to applications for “New pharmacies (at least 1.5 km)”, contains the following requirements:

(a)    the proposed premises are at least 1.5 km, in a straight line, from the nearest approved premises; and

(b)    the Authority is satisfied that, at all relevant times, there is, within 500 m, in a straight line, from the proposed premises, either:

(i)    both the equivalent of at least one full-time prescribing medical practitioner and a supermarket that has a gross leasable area of at least 1,000 m2; or

(ii)    a supermarket that has a gross leasable area of at least 2,500 m2 

13    Rule 10(2) sets out the circumstances in which the Authority must recommend that approval be granted for an application that does not involve the cancellation of an existing approval, including:

(a)    the application is of a kind mentioned in column 1 of an item in Part 2 of Schedule 1; and

(b)    the following requirements are met in relation to the application:

(i)    the requirements in column 2 of that item;

(ii)    the requirements in subsection (3)

14    There are also general requirements for approval, which are contained in r 10(3) of the Rules and include that the Authority must be satisfied that: 

(a)    at all relevant times the proposed premises are not approved premises; and

(b)    the applicant has, at all relevant times, a legal right to occupy the proposed premises (whether the right is to occupy the premises on the day the application is made or after that day); and

(c)    at all relevant times the proposed premises could be used for the operation of a pharmacy under applicable local government and State or Territory laws relating to land development; and

(d)    the proposed premises would be accessible by the public; and

(e)    within 6 months after the day on which the Authority makes a recommendation in relation to the application, the applicant will be able to begin operating a pharmacy at the proposed premises; and

(f)    the proposed premises will not be directly accessible by the public from within a supermarket.

Note:    The requirement in paragraph (3)(c) would be satisfied if, for example, planning approval for the proposed pharmacy has been obtained or, if this is not necessary in the State or Territory where the pharmacy would be located, the proposed premises are on land that is zoned so as to enable the operation of a pharmacy. An application to obtain a building works approval or a certificate of occupancy, or similar, is not needed to satisfy this requirement. However, it may be needed for compliance with the requirement in paragraph (3)(e), depending on the operation of applicable State or Territory land development laws.

15    Rule 5 defines "all relevant times" as:

(a) the day on which the application was made; and

(b) the day on which the application is considered by the Authority.

16    It also defines "application" as "an application under section 90 of the Act that is referred to the Authority".

17    Pursuant to r 11(a) of the Rules, if a requirement under r 10 is not met, the Authority must not recommend that approval be granted.

18    With respect to considering whether approval should be recommended or not, the following was observed in Walkerden at [13]:

Thus, in accordance with the content of the 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. As part of that focus, consideration is given to the location of other pharmacies. But the principal focus, in my opinion, is on the community’s need for adequate and sustainable access to pharmaceutical benefits and a new application is to be assessed according to criteria designed to advance that objective.

Local Government Legislation

19    Section 49(1) of the Planning Act 2016 (Qld) provides that a "development approval" is either:

(a) a preliminary approval; or

(b) a development permit; or

(c) a combination of a preliminary approval and development permit. 

20    Section 71 of the Planning Act sets out when a development approval has effect:

(1)    Generally, a development approval starts to have effect when the approval is given, or taken to have been given, to the applicant.

(2)    However—

(a)    if an appeal about the approval is started, and subject to the outcome of the appeal—the approval starts to have effect when the appeal ends; or

…

21    Section 72 of the Planning Act provides when development may start:

(1)    Development under a development approval may start when—

(a)    all development permits for the development have started to have effect; and

(b)    all development conditions of the permits that are required to be complied with before development starts have been complied with.

(1)    However, if an appeal is started in relation to a development approval, other than an appeal about a change application or extension application, development must not start until—

(a)    the appeal ends; or

(b)    the tribunal or court hearing the appeal allows all or part of the development to start, because the tribunal or court considers the outcome of the appeal would not be affected.

BACKGROUND

22    On 24 August 2021, a development application was lodged with the Toowoomba Regional Council for a Material Change of Use – Health Care Services (Medical Centre) and Shop (Pharmacy) in connection with the Glenvale Premises (Development Application).

23    In November 2021, submissions were made to the Council as part of the public notification phase of the Development Application.

24    On 1 April 2022, the Council issued a Decision Notice approving the Development Application, and on 14 April 2022 it issued letters to those who made submissions to it during the public notification phase advising of the decision and providing details of appeal rights.

25    On 12 April 2022, the applicant lodged an application with the Minister for Health and Aged Care to exercise his power pursuant to s 90A(2) of the Act to approve the supply of pharmaceutical benefits (Applicant’s Application) at the property located at Shop 2, Glenvale Shopping Centre, Toowoomba Queensland 4350 (Applicant’s Premises). The background to this application is a preceding application made by the applicant on 16 December 2021 pursuant to Sch 1, Pt 2, Item 30 of the Rules for approval to supply pharmaceutical benefits from the Applicant’s Premises, which was rejected on 17 February 2022 as the Authority was not satisfied that the Applicant’s Premises were located at least 1.5 km, in a straight line, from the nearest approved premises.

26    On 20 April 2022, Glenvale Pharmacy lodged an application pursuant to Sch 1, Pt 2, Item 130 of the Rules for approval to supply pharmaceutical benefits from the Glenvale Premises (Glenvale Pharmacy’s Application). The Glenvale Premises are located within 300 metres in a straight line from the Applicant’s Premises.

27    On 28 April 2022, solicitors for the applicant sent an email to the “Ministerial Discretion Team” of the Department of Health asking to be notified of any application to establish a new pharmacy and/or to relocate an existing pharmacy within 5 kilometres of the Glenvale Premises for the purposes of making comments on such applications as an interested party.

28    On 2 May 2022, the applicant was notified of Glenvale Pharmacy’s Application.

29    On 10 May 2022, an appeal was lodged by Stokes Lawyers, who acted for the applicant some time prior to these proceedings, with the Planning and Environment Court against the Council's approval of the Development Application. Final orders were made on 9 June 2022 granting leave to discontinue the appeal.

30    On 11 May 2022 the applicant objected to Glenvale Pharmacy’s Application to the Authority on the basis that, at all relevant times, the Glenvale Premises could not be used to operate a pharmacy under applicable local government and State and Territory laws relating to land development, because the Council's decision to approve the Development Applicant had been the subject of an appeal to the Planning and Environment Court.

31    On 15 July 2022, the Authority recommended that Glenvale Pharmacy's Application be approved. Notification of that was sent to Glenvale Pharmacy on 18 July 2022, and to the applicant on 1 August 2022. On 3 August 2022, the applicant requested a statement of reasons from the Authority.

32    On 10 August 2022, the applicant wrote to the Secretary seeking written confirmation, within 10 days of the date of its letter, that the Secretary had decided to reject the Authority’s recommendation on the basis of their “irrefutable contention” that Glenvale Premises at all relevant times could not be used for the operation of a pharmacy pursuant to r 10(3) of the Rules.

33    On 19 August 2022, the Secretary responded to the applicant advising that he would consider the matters raised in its objection when making a decision as to whether or not approval would be granted to Glenvale Pharmacy, and otherwise stated that if it was dissatisfied with the Authority’s recommendation, it was a matter for the applicant as to whether it commenced judicial review proceedings.

34    On 29 August 2022, the applicant commenced this proceeding.

35    The Authority provided its statement of reasons on 31 August 2022 which stated, inter alia, that it was satisfied at all relevant times that Glenvale Premises could be used to operate a pharmacy under applicable local government and State and Territory laws relating to land development.

36    The applicant then, on 6 September 2022, sought an undertaking from the Secretary that he would refrain from making a decision with respect to Glenvale Pharmacy’s Application while proceedings were before the Court. The Secretary declined to provide such an undertaking but agreed to give the applicant seven days' notice prior to making a decision with respect to Glenvale Pharmacy's Application.

37    On 11 October 2022, the Applicant’s Application was approved by the Minister, effective from 4 October 2022.

38    On 21 November 2022, the applicant was advised by the Secretary that he would be considering Glenvale Pharmacy’s Application on or after 1 December 2022. The applicant sought an undertaking from Glenvale Pharmacy that it would refrain from opening the pharmacy on the Glenvale Premises while these proceedings were on foot, and that it would refrain from seeking approval from the Secretary for the Glenvale Premises, which undertaking Glenvale Pharmacy refused to provide.

39    On 25 November 2022, the applicant filed an interlocutory application in this proceeding seeking that the Secretary be restrained from approving Glenvale Pharmacy’s Application. The Court dismissed the application, finding that ground 1(a) (defined below) did not constitute a serious question to be tried and sought to conflate merits review with judicial review and that, in any event, the balance of convenience did not weigh in favour of the applicant: Jele Chemists Pty Ltd v Australian Community Pharmacy Authority [2022] FCA 1445 at [19], [29] (Collier J).

40    On 8 December 2022, a delegate of the Secretary approved Glenvale Pharmacy’s Application.  

41    Thereafter, Glenvale Pharmacy commenced trading from the Glenvale Premises around 15 December 2022 and the applicant commenced trading from the Applicant’s Premises on 6 February 2023 and.

JUDICIAL REVIEW

42    The grounds of review pressed by the applicant at hearing are as follows, which will be referred to as ground 1A and ground 1(a) respectively:

1A.     The Authority did not have the jurisdiction to make the Authority’s Decision that it purported to make (ADJR Act, s5(1)(c)) because at the time the application was made, and the time of the purported Authority’s Decision, there was no particular premises at which the Authority could approve Glenvale Pharmacy to supply pharmaceutical benefits.

1.     The Authority’s Decision involved an error of law (ADJR Act, s5(1)(f)), in that that:

a.     at all relevant times the Proposed Premises could not be used for the operation of a pharmacy under applicable local government and State or Territory laws relating to land development in accordance with the requirements of s10(3)(c) the Rules.

43    Glenvale Pharmacy filed a Notice of Objection to Competency, challenging the standing of the applicant. It also made written and oral submissions asserting that by ground 1(a) the applicant seeks merits review of the Authority’s decision and written submissions regarding the issues of construction raised by both grounds.

44    The Authority appeared in accordance with the Hardiman principle (R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35 – 36) and made written and oral submissions dealing with the matters of construction raised by grounds 1A and 1(a). The submissions of the Authority and those of Glenvale Pharmacy were largely consistent. The Secretary filed a submitting notice.

45    The bundle of documents before the Authority were marked as an exhibit. The applicant read the affidavits of Emily Dahl (Dahl Affidavit) and Jason Tavakol (Tavakol Affidavit), both affirmed on 10 May 2023, Glenvale Pharmacy read the affidavit of Michael Flaherty sworn on 16 March 2023 (Flaherty Affidavit) and the Authority read the affidavit of Benjamin Dubé sworn on 24 November 2022. I grant leave for the applicant to read the Dahl Affidavit and Tavakol Affidavit, noting leave was provisionally granted at the hearing for the applicant to read the affidavits as they were not filed in accordance with orders of the Court.

CONSIDERATION

Standing

46    It is appropriate to deal first with the question of the applicant’s standing.

47    Pursuant to s 5 of the ADJR Act, a person may seek review of a decision if they are "a person who is aggrieved by a decision". Section 3(4) of the ADJR Act defines "person aggrieved" as the following:

(4) In this Act:

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

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

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

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

48    The Originating Application described the applicant as being aggrieved by the decision as it might potentially interfere with the consideration of the Applicant’s Application. However, after the Minister approved the Applicant’s Application in October 2022, the applicant sought and was granted leave to file a Further Amended Originating Application by which it claimed to be a person aggrieved by the decisions as Glenvale Premises are located within 200 metres in a straight line from the Applicant’s Premises. That claim is supported by the Tavakol Affidavit in which it is affirmed that the distance between the two premises is less than 300 metres in a straight line and which exhibits a map showing that to be the case.

49    The term "person aggrieved" is not to be given a narrow construction and is not to be confined to only those who can establish that they have a legal interest which is affected by the outcome of a decision: Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79 (Ellicott J). The wide interpretation of the term is not intended to suggest that any member of the public can seek review of a decision, but rather that one must show a grievance that will result from a decision, beyond any grievance that one may have as an ordinary member of the public: Tooheys at 79-80.

50    In Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394, French CJ and Keane J considered at [48] that "[t]he courts should not be astute to graft restrictions" on the language used in what is the equivalent to s 3(4) of the ADJR Act. At [43], in considering whether an applicant is a "person aggrieved", French CJ and Keane J considered that "it will be necessary to have regard to the enactment under which the impugned decision is made and the legal effect and operation of the decision in order to determine how the interests of the applicant for review may be adversely affected or the applicant otherwise a person aggrieved". At [61], Hayne and Bell JJ stated the following:

The focus of the inquiry required by the words is upon the connection between the decision and interests of the person who claims to be aggrieved. The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from (“beyond”) its effect on the public at large.

(Footnotes omitted) 

51    The use of the word "includes" in s 4(a) of the ADJR Act indicates an expansive interpretation of the section should be used, so as to not limit what may constitute “a person aggrieved”.

52    As the applicant acknowledged it bears the onus of proof in establishing that it has standing.

53    Glenvale Pharmacy argued that the applicant could only establish that it had standing if it could identify interests that were “adversely affected by the decision” at the time of the making of the decision, pursuant to s 3(4)(a) of the ADJR Act. Because the applicant’s approval was not yet in existence at the time of the decision, Glenvale Pharmacy contended that the applicant therefore does not have standing. It follows, therefore, according to Glenvale Pharmacy, that had the Applicant’s Premises been operating prior to the decision, its standing in this proceeding would be uncontroversial. Glenvale Pharmacy referred to the Flaherty Affidavit which exhibits correspondence between the solicitors for the parties in which the applicant is asked to identify the interests it says are adversely affected and its refusal to do so.

54    Thus, Glenvale Pharmacy’s argument is that, irrespective of when any interest is affected by a decision, the interest must be properly identified at the time of making the decision. Glenvale Pharmacy sought to characterise the issue as a temporal one; standing cannot be retrospective or prospective, it must exist at the time at which the decision sought to be impugned was made. At that time in this case, in Glenvale Pharmacy’s submission, the only interest the applicant could have had was to obtain an approval, and that approval has been obtained, thus extinguishing its standing. Otherwise, according to Glenvale Pharmacy, the logical corollary is that a buyer of a pharmacy could make an application for judicial review under the ADJR Act in respect of an approval given to a competitor at any time prior to the purchase of the pharmacy.

55    Glenvale Pharmacy also contended that the applicant had not demonstrated that any economic interest had been adversely affected by the decision such as to establish standing and, given neither pharmacy was trading at the time the Originating Application was filed, it would not be possible to demonstrate such an interest. Argos makes it clear that economic interest is a relevant consideration when determining whether a party has standing, however it is not a complete answer to the question: [60] (Hayne and Bell JJ) and [91] (Gageler J). In any case at the time at which the Further Amended Originating Application was filed, both pharmacies had commenced operating and therefore an economic interest is established.

56    The applicant, relying on s 3(4)(b) of the ADJR Act, sought to advance the argument that a “person aggrieved” includes a reference to a person whose interests are or would be affected (emphasis added). Glenvale Pharmacy took issue with this approach, pointing to the Further Amended Originating Application, which relies only on s 5 of the ADJR Act, which relates to a person aggrieved by “a decision” as opposed to s 6 which relates to a person aggrieved by “conduct relating to making a decision” and to which s 3(4)(b) of the ADJR Act applies. The applicant emphasised that standing ought be interpreted broadly as the ADJR Act is a permissible piece of legislation in the sense that it is intended to permit the review of government decisions, as opposed to narrowing the scope of who may bring an application.

57    Glenvale Pharmacy’s submissions are compelling – the use of the word “would” in s 3(4)(b) of the ADJR Act connotates less certainty than that arising from the use of the word “are” in s 3(4)(a) of the ADJR Act. In my view this supports Glenvale Pharmacy’s position that standing has a temporal quality. However, as the applicant correctly submitted, by virtue of s 11(6) of the ADJR Act, it is not bound by the grounds of review sought.

58    The applicant submitted that its interests exceeded those of ordinary members of the public as it has a special interest in ensuring compliance with the statutory scheme. In that regard there was evidence before the Court regarding the distance between the Applicant’s Premises and Glenvale’s Premises, the experience of the sole director of the applicant as a pharmacist, and that Glenvale Pharmacy and the applicant were trading as pharmacies. The applicant also submitted that the basis for standing can change throughout the course of a matter.

59    The applicant further contended that its special interest was recognised by the Authority’s invitation to comment on Glenvale Pharmacy's Application and provide evidence as to how that application did not comply with the requirements of Sch 1, Pt 2, Item 130 of the Rules. According to the applicant, that is the Authority’s usual procedure and “completely answers” the challenge to its standing.

60    This contention was rebutted by Glenvale Pharmacy, on the basis that the applicant had itself requested that the Authority provide it with notice of any application it received to establish a new pharmacy or to relocate an existing pharmacy. That led to the Authority advising the applicant of Glenvale Pharmacy’s Application and inviting submissions from it. In Glenvale Pharmacy’s submission the applicant cannot have standing simply because it has inserted itself into the approval process. However, that the applicant requested that it be notified of any other pharmacy seeking an approval does not necessarily diminish its special interest. As the Pharmacy Location Rules Applicant’s Handbook, makes clear the process of inviting submissions is not a formal one, and while it notes that it is standard practice for the Authority to seek submissions from surrounding pharmacists, it also urges that pharmacists themselves invoke other pharmacists with a possible interest in the approval of pharmacies to make submissions/seek the right to make submissions. Accordingly, I do not accept Glenvale Pharmacy’s submission that the applicant’s request that it be invited to make submissions was no support for it having a “special interest”.

61    Referring to its claimed “special interest” the applicant relied on the decision of Assarapin v Australian Community Pharmacy Authority (2016) 239 FCR 161 at [52]-[54] (Bromberg, Rangiah and Perry JJ) which said the following with respect to standing:

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

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

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

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

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

62    While the applicant’s evidence as to how its interests are or would be adversely affected is less than fulsome, I accept that it has “an interest which rises above that of an ordinary member of the public”. The cases are clear as to the approach to be adopted in cases involving s 5 the ADJR Act; that “person aggrieved” ought not to be considered in a narrow way. The applicant’s rights fall within the matters referred to in Argos, that is “legal rights, privileges, permissions or interests” and, in my view, fall within the wide ambit contemplated by s 3(a) of the ADJR Act. Accordingly, the Notice of Objection to Competency is dismissed.

Ground 1(a)

63    Both grounds raised by the applicant pertain to matters of statutory construction.

64    The way in which Courts should approach statutory interpretation has been widely discussed and is helpfully summarised in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

(Footnotes omitted)

65    Furthermore, in R v A2 (2019) 269 CLR 507 Kiefel CJ and Keane J at [37] observed the following: 

When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

(Footnotes omitted)

66    While the text of the statutory provision is the starting point, the context and purpose of the statute provide important insight into its meaning: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). With respect to the meaning of context and purpose more broadly, in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Brennan CJ, Dawson, Toohey and Gummow JJ said at 408:

It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one might discern the statute was which intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance.

(footnotes omitted)

67    The Rules, established by the Minister under s 99L of the Act, are a legislative instrument for the purposes of the Legislation Act 2003 (Cth) to which the Acts Interpretation Act 1901 (Cth) applies: s 13(1) Legislation Act. As the Rules are subordinate legislation, they are to be placed in their statutory context and are to be interpreted in a manner consistent with the Act’s objects: s 13(1)(c) Legislation Act; s 15AA Acts Interpretation Act. The objects of the Act were described in Walkerden at [62], set out above at [10].

68    By ground 1(a), the applicant argued that the Authority erred by making a critical mistake of law as, correctly applying s 71 of the Planning Act, it could not have been satisfied that “at all relevant times the [Glenvale] Premises could be used for the operation of a pharmacy under applicable [Queensland] laws relating to land development” as required by r 10(3)(c) of the Rules. It contended that the Authority reaching satisfaction on that point was an essential precondition of its exercise of statutory power and, by erring with regards to it, the recommendation made to the Secretary for approval is vitiated.

69    The events which lead the applicant to this contention, as described above, are that a decision notice approving the Development Application was issued on 1 April 2022, in respect of which an appeal was lodged on 10 May 2022 and subsequently discontinued on 9 June 2022. Glenvale Pharmacy’s Application, although dated 3 April 2022, was received by the Authority on 20 April 2022.

70    Pursuant to s 71 of the Planning Act, a development approval has effect when either:

    the approval is given;

    if an appeal is commenced, once the appeal ends;

    if there is a submitter for the development application that has not withdrawn their submissions, when the submitter advises it will not appeal the decision; or

    when the appeal period ends.

71    The appeal period for the approval of the Development Application, pursuant to s 229(3)(g) of the Planning Act, ended on 17 May 2022. As such the applicant contended that on either 3 April 2022 or 20 April 2022, as a matter of law, Glenvale Premises could not be used for the operation of a pharmacy as a development permit was yet to be issued, and as the appeal period had not yet concluded the approval of the Development Application had not yet taken effect. Accordingly, it submitted that the Authority could not be satisfied that "at all relevant times the proposed premises could be used for the operation of a pharmacy under applicable local government and State or Territory laws relating to land development" pursuant to r 10 of the Rules, and that therefore approval should not have been recommended.

72    The applicant contended that this point was made out in the evidence referred to in the Tavakol Affidavit, namely the correspondence to it from the Authority dated 2 May 2022 which invited comments or submissions with respect to Glenvale Pharmacy’s Application for approval to supply pharmaceutical benefits and the responses from its solicitors to the Authority dated 11 May 2022 enclosing letters from its planning law consultant and a Senior Planner at the Toowoomba Regional Council. Specifically, the applicant relied on the advice of its planning consultant provided to the Authority in relation to the operation of the Planning Act as follows:

19     At all relevant times, the Proposed Premises could not and still cannot be used for the operation of a pharmacy as there is currently no development approval / development permit from the Council to commence the pharmacy use on the Proposed Premises.

20     The development approval for the pharmacy use does not take effect (i.e. the Council’s decision to approve the Development Application) until the last appeal period for the development approval ends.

21     Only where the Council does not receive notice by the DA Appeal Deadline Date from at least one of the four Principal Submitters appealing the Council’s decision to approve the Development Application, then the development approval does not take effect until 18 May 2022.

73    Glenvale Pharmacy contended that the applicant seeks a reprisal of the merits by this ground of review, and relied on the observations of Logan J in Hallgath v Australian Community Pharmacy Authority [2011] FCA 1062 at [8]-[9]:

It can be seen by the use of the expression “is satisfied” that the relevant jurisdictional fact is a state of administrative satisfaction as to the existence of a particular state of affairs, rather than the very existence, as a matter of objective fact, of that state of affairs. This type of drafting device is often used in circumstances where the Parliament, or as the case may be, the author of an administrative determination, seeks to limit the scope of agitation concerning factual matters upon judicial review: see definitively in this regard the judgment of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.

That does not mean that such decisions which are made by reference to such a criterion are unexaminable on judicial review. It does though mean that the grounds of review which relate to this particular aspect of the Authority’s recommendation decision will not be met if there was some evidence before the Authority which was reasonably probative of the state of satisfaction which the Authority voiced in its reasons.

74    Glenvale Pharmacy also relied on the interlocutory judgment of Collier J in this matter, where her Honour found that this ground did not constitute a serious question to be tried and sought to conflate merits review with judicial review.  

75    I do not accept Glenvale Pharmacy’s argument that this is simply an attempt at impermissible merits review. By this ground the applicant does not seek that this Court determine whether certain of the Authority’s factual findings were correct. Rather, the question that arises, based on undisputed factual findings, is whether the state of satisfaction reached by the Authority is tainted by an error of law. It is an important question with respect to the statutory construction of r 10(3)(c) of the Rules.

76    Furthermore, the judgment of Collier J needs to be understood in its context, being an interlocutory application for an injunction. Her Honour’s judgment was based on the material which was before her Honour at that time which was prior to the filing of the Further Amended Originating Application and a substantial volume of evidence. The case before the Court is now quite different. Finding that there is not a prima facie case at an interlocutory stage is quite different from a final hearing of the case with all the evidence before the Court.

77    I consider the applicant has raised a valid question of law regarding the statutory construction of r 10(3) of the Rules.

78    I now turn to the relevant findings of the Authority, in respect of which Glenvale Pharmacy contended that the Authority had made no error in any event.

79    The relevant findings of the Authority are at paragraphs [32]-[34] of its statement of reasons:

32. The Authority considered:

(a)    the Development Application Decision Notice dated 1 April 2022 issued by the Toowoomba Regional Council, approving the Material Change of Use of the premises at 662-670 Greenwattle Street, Harristown, Qld 4350 to ‘Health Care Service and Shop’;

(b)    correspondence and supporting documentation from third parties objecting to the Application on the basis that the proposed premises could not, at all relevant times, be used for the operation of a pharmacy under applicable local government and state or territory laws relating to land development. The third parties submitted that the Council’s Decision Notice approving the Development Application does not constitute the development permit which permits the use of the proposed for the proposed medical centre and pharmacy, as the approval takes effect subject to the appeal provisions in the relevant planning legislation;

(c)    a letter from the applicant’s representative dated 7 July 2022, provided in response to the Authority’s request for further information dated 8 June 2022.

33.     The Authority found that, based on the information provided by the Applicant and third parties, proceedings were commenced on 10 May 2022 in the Planning and Environment Court to appeal the decision of the Toowoomba Regional Council to approve the Development Application for the Material Change of Use of the premises at 662-670 Greenwattle Street, Harristown, Qld 4350 to ‘Health Care Service and Shop’. Those proceedings were discontinued by the appellant on 9 June 2022.

34.     The Authority was satisfied that, based on the information and documents specified above, at all relevant times the proposed premises could be used for the operation of a pharmacy under applicable local government and State or Territory laws relating to land development.

80    For the reasons that follow the applicant’s argument must be rejected.

81    First, as submitted by the Authority, the meaning of r 10(3)(c) of the Rules is informed by the note to the section. All material in a Commonwealth Act, including its notes, form part of the Act: s 13 Acts Interpretation Act. The note to r 10(3) of the Rules makes it clear that there is no express requirement that there be a final development approval. All that the Rules require is that at the relevant times planning approval has been obtained – not that it has taken effect. To adopt a different approach would mean that a development approval with conditions attached would similarly not suffice.

82    Importantly, r 10(3)(c) uses the words “could be”, which is concerned with possibility and indicates a lesser degree of certainty is required to reach that state of satisfaction, as opposed to a matter of fact. The lack of an explicit requirement that planning approval be in full effect, or that the Rules do not prescribe the requirement as a “can” or “must” as opposed to “could”, indicates that the narrow interpretation pressed by the applicant is not consistent with the purpose of the Rule.

83    Second, the Act is not concerned with the intricacies of local government and State and Territory planning legislation, and beyond providing approval to pharmacists, any subsidiary question about the practical reality of such approval is not a matter with which the Authority is necessarily concerned. According to the Authority, relying on s 15AA of the Acts Interpretation Act, the Rules should be interpreted in a manner consistent with the purpose and objects of the Act, which relevantly for this matter relate to the supply of designated drugs prescribed by a health practitioner to persons, not local government and State and Territory planning laws.

84    As the Authority submitted such an interpretation is clear from Terry White Chemists Australia Fair v Secretary to the Department of Health and Ageing (2009) 178 FCR 161 at [20] and [22] (Gray, Greenwood and Tracey JJ):

The preferable construction is to regard s 90(4) of the National Health Act as not so much a limitation on the power of the Secretary to grant an approval pursuant to s 90(1), as a limitation on the extent of the approval that the Secretary grants. Viewed in this way, s 90(4) makes it clear that an approval granted by the Secretary pursuant to s 90(1) is not to be regarded as extending beyond the purposes of the scheme set up by Pt VII of the National Health Act, the Pharmaceutical Benefits Scheme. The approval is not to be regarded as overriding any provision of State or Territory laws under which the carrying on of the business of a pharmacy at the relevant premises by the particular pharmacist would not be permitted. On this construction, the Secretary would not be concerned with the operation of any laws of any State or Territory, but only with the granting or refusal of approval to a particular pharmacist to supply pharmaceutical benefits at particular premises, for the purposes of the Pharmaceutical Benefits Scheme. A pharmacist to whom such approval is granted would still need to be permitted by the laws of the relevant State or Territory to carry on the business of a pharmacist at the premises in respect of which the approval has been granted. The Secretary cannot grant the pharmacist an approval that would oust the effect of those State and Territory laws, but only an approval for the purposes of the Pharmaceutical Benefits Scheme. It would be for the authorities of the relevant State or Territory to apply and enforce the laws of that State or Territory. Accordingly, s 90(4) of the National Health Act is a declaratory provision that seeks to put beyond doubt that, although a pharmacist might be approved under s 90(1) for the purpose of supplying pharmaceutical benefits at or from particular premises, he or she being willing to do so on demand at particular premises, such an approval does not cover the field of all permits, licences or approvals a pharmacist may be required to obtain in order to comply with a law of a State or Territory in which the premises are situated, in order to carry on the business of a pharmacist.

….

The adoption of a purposive construction of s 90(4) of the National Health Act leads to the conclusion that, when considering an application for approval under s 90(1), the Secretary is not concerned with provisions of State or Territory laws, but only with the functioning of the Pharmaceutical Benefits Scheme. To the extent to which it stated that town planning and land use laws are irrelevant to the Secretary’s function, what the Full Court said in Kaderbhai (quoted at [11] above) is consistent with that conclusion. Not all of the reasoning of the Full Court in Kaderbhai is consistent with the reasoning based on a purposive construction, however. Whether a purposive construction is adopted, or whether what was said in Kaderbhai is followed, the proper conclusion is that s 90(4) of the National Health Act does not require the Secretary to consider laws of a State or Territory relating to town planning or land use. On either view, the appellant cannot establish that the Secretary’s grant of approval to Glenvale Pharmacy to supply pharmaceutical benefits from the premises in respect of which he applied for approval was invalid. In our view, the purposive construction is to be preferred to the reasoning in Kaderbhai. The primary judge was correct to dismiss the application to set aside the Secretary’s decision. The appeal must be dismissed. No reason was advanced, and none appears, why the usual principle, that costs follow the event, should not be applied. Accordingly, the appellant will be ordered to pay the costs of the appeal of the Secretary and Glenvale Pharmacy.

85    The applicant contended both that Terry White is distinguishable on its facts, as it was concerned with the interpretation of s 90(4) of the Act rather than the proper interpretation of the Rules, and that it was in fact supportive of the applicant’s case. Section 90(4) of the Act provides:

(1)    Nothing in this section authorizes the Secretary to grant approval to a pharmacist in respect of premises at which that pharmacist is not permitted, under the law of the State or Territory in which the premises are situated, to carry on business.

86    It is clear that Terry White is directed at an approval granted by the Secretary. In my view that does not make Terry White distinguishable. The decision being made by the Authority is for the purpose of the supply of pharmaceutical benefits, not for the purpose of enforcing planning law. It is also true that Terry White at [19] states that “[t]o the extent to which it might be considered that State or Territory laws are relevant, it is open to the Minister to make rules pursuant to s 99L of the National Health Act, requiring the Authority to apply those laws as part of its consideration of an application for approval referred to it under s 90(3A) of the National Health Act”. According to the applicant, therefore the Authority is required to determine whether “premises could operate under the laws of a state or territory relating to land development”. The applicant also took issue with the proposition advanced by Glenvale Pharmacy that the use of the words “could be used as a pharmacy” indicate a broad interpretation should be applied, such that the word “could” is read as “possibly could”. Those submissions are rejected.

87    The weight of authority makes it clear that the Authority is not concerned with local government and State and Territory planning laws. Support for this approach is also found by recourse to r 10(3)(e) of the Rules which makes it plain that the premises will be operating as a pharmacy six months after the Authority makes its recommendation. Further, the use of the words “could be used” in r 10(3)(c) is not to be taken as meaning “are able to be used”. “Could” is defined in the Macquarie Dictionary as “referring to a potential event or situation”. Therefore, in context, the requirement that “at all relevant times the proposed premises could be used for the operation of a pharmacy under applicable local government or State or Territory laws relating to land development” is concerned with a potential, or possibility, that the proposed premiss could be used, as opposed to a certainty.

88    Third, as submitted by the Authority, to accept the applicant’s construction of r 10(3)(c) of the Rules would risk applicants not being able to satisfy, as a matter of evidence, r 10(3)(e) that they will be able to begin operating a pharmacy at the proposed premises within six months of the Authority making its recommendation. This is because if an appeal has been commenced and has not been finalised in relation to the development approval, it may be difficult to prove that a pharmacy can begin operating within the time specified by r 10(3)(e). The effect of approval is relevant to r 10(3)(e), and whether or not approval has been obtained is relevant to r 10(3)(c). So much is clear from the note.

89    Fourth, s 99N of the Act does not require a lawyer or other person with specialist knowledge about local government and State and Territory planning laws to be appointed to the Authority. The Act prescribes that there be a chairperson, pharmacists, an officer from the Department and a person who the Minister regards as appropriate to represent the interests of consumers. Both the Authority and Glenvale Pharmacy quite properly submitted that this composition is inconsistent with the applicant’s interpretation of what is required in order for the Authority to reach a state of satisfaction pursuant to s 10 of the Rules. In considering the construction of “a legal right to occupy” it was stated in Watson v Australian Community Pharmacy Authority (2012) 206 FCR 365 at [73] (Lander, Jessup and Foster JJ):

The composition of the Authority is inconsistent with the appellant’s argument that the Authority has to be satisfied of the legal relationship between an applicant and the owner of the proposed premises before it can be satisfied that the applicant has a legal right to occupy the proposed premises. The majority of the members of the Authority are pharmacists who have no legal training and would not necessarily understand the legal differences between ownership, leasing, licensing, and other dealings in land. They are likely to have practical experience, because it is likely that they would be in business themselves, and would have obtained premises for the purpose of carrying on a business. However, it is unlikely Parliament would have expected persons unqualified in the law to have considered the issue of whether an applicant has a legal right to occupy proposed premises by reference to the vagaries of property law. The Authority’s decision to recommend approval has to be understood in this light.

90    The composition of the Authority as prescribed by the Act supports the interpretation that the Authority need only be satisfied that planning approval has been obtained, rather than having to interpret various forms of local government or State or Territory legislation to confirm when that approval might take effect or the practical realities of the approval.

91    Fifth, as the Authority submitted, correctly in my view, that to accept the applicant’s interpretation is to risk the possibility that a competitor could frustrate an applicant’s ability to satisfy r 10(3)(c) of the Rules by appealing planning approvals. This could lead to a manipulation of the process which is not intended by the statute.

92    For those reasons ground 1(a) does not succeed.

Ground 1A

93    By ground 1A, the applicant contended that on its proper construction, the Rules are predicated on the assumption that the premises are in a “built form” as opposed to a hypothetical premises. The applicant submitted that on reading the Rules as a whole, it is evident that they are concerned with built premises, based on the use of the current tense and the presumption that precise locations can be ascertained, for example with respect to the distances between premises. The applicant submitted that it would be impossible to obtain accurate measurements if the premises were not in a built form, and therefore to construe the Rules in such a way would lead to uncertainty and could lead to pharmacists undermining the Rules by seeking to obtain approval over hypothetical premises that may never be built, thereby effectively preventing other applicants from obtaining approvals to supply pharmaceutical benefits in that area.

94    These submissions must be rejected.

95    When looking at the words used in the text of r 10(3) of the Rules, as well as Sch 1 of the Rules to which regard must be had pursuant to r 10(2)(a), there is the repeated use of the words “proposed premises”. “Proposed premises” is defined in r 5 of the Rules as “in relation to an application, means the premises at which the applicant proposes to supply pharmaceutical benefits”. There is no indication in the Rules that the premises are required to be built or established.

96    When considering r 10(3)(b) of the Rules, the right to occupy the premises can arise once an application is made, therefore it is unlikely that it is intended that there be physical premises in existence capable of being occupied when the application is made. Furthermore, the use of the words “land development” in r 10(3)(c) of the Rules would be nonsensical if the intention is that only physically built premises are capable of being subject to approval.

97    Further, r 10(3)(e) of the Rules states that Authority must be satisfied that the applicant will be able to commence operating the pharmacy at the proposed premises within 6 months of the date approval is recommended. This particular subsection suggests that the premises are not required to be fully established at the date approval is recommended. This point is reinforced by the note to r 10(3) of the Rules which refers to the provision of “building works approval” which may be necessary to satisfy the Authority in some circumstances. It would also be nonsensical for the Rules to be drafted in this manner if the premises were required to be built at the point at which the Authority makes a recommendation.

98    In Assarapin, the Full Court at [36] acknowledged that even the words “existing premises” do not necessarily mean there must be a physical building:

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

(Emphasis in original)

99    If the term “existing premises” is accepted as an approved premises under the Rules notwithstanding they are not in physical existence, I am of the view that the same applies to the term “proposed premises”.

100    With respect to the applicant’s argument that uncertainty may be caused by an inability to precisely and accurately measure distances in the absence of a constructed building, a Full Court of this Court previously held that an unbuilt shopping centre was a “particular premises” within the meaning of s 90(4) of the Act: Secretary, Dept of Housing, Local Government and Community Services v Kaderbhai (1994) 51 FCR 416 (Foster, Cooper and Whitlam JJ). Furthermore, in Garozzo & Pharmacy Restructuring Authority (1992) 28 ALD 424 at [38] (O’Connor J), which is a decision from a Tribunal but constituted by a justice of this Court and cited in Kaderbhai, his Honour stated that the fact that a premises is yet to be constructed is “not to the point”.

101    The Handbook, which provides a general guide for applicants seeking to establish new pharmacies under s 90 of the Act, provides detailed instructions regarding evidence that may be provided to establish distance requirements for proposed premises, including maps, plans, photographs and survey reports. In my view, it is clear that the Act and Rules do not intend that every application be met with actual physically built premises when seeking approval under s 90 of the Act, and specifically in order to comply with r 10 of the Rules.

102    I note that a contention was raised by the applicant as to the applicability of the Handbook, in the sense that the Handbook contains a disclaimer that it ought not be used “as a basis for legal interpretations or as a definitive reference to the roles and responsibilities of all parties”. The Authority submitted, and I accept, that the Handbook is a lawful policy such as those contemplated in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 644-645 (Brennan J):

If consistency in decision making is sought, as it ought to be, the standards and values which a Minister expresses in a statement of lawful policy can be a constant reference point for each of the presidential members of the Tribunal in exercising the discretion in particular cases. Ministerial policy can be an aid to consistency among Tribunal decisions, and to consistency between the decisions of the Tribunal and those of the Minister. Decisions made under a statutory power and reviewed by the Tribunal are but a proportion of the decisions made under that power, and it would be a regrettable anomaly if the decisions which were not reviewed revealed different standards and values from those made on review.

These considerations warrant the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice.

…

The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.

103    Accordingly, I am of the view that when considering the Rules, the term “proposed premises” ought not be narrowly interpreted to mean “proposed premises which have been built”, but rather to mean a premises in which the applicant proposes to operate their pharmacy, regardless of its actual physical existence at the time of the Authority’s recommendation. Such a view is consistent with the objects of the Act, findings of other justices of this Court and is clearly contemplated by the Handbook.

104    Finally, the applicant’s submission that pharmacists may “game” the system by seeking to have “hypothetical premises” approved is merely speculative, and with respect, difficult to understand. In my view, the requirement that a proposed premises be able to be operated as a pharmacy within six months of the recommendation of the Approval pursuant to r 10(3)(e) of the Rules prevents any gaming as the Minister has the power to revoke approval pursuant to s 95 of the Act.

105    Ground 1A does not succeed.

CONCLUSION

106    The Notice of Objection to Competency and the Further Amended Originating Application are dismissed. Orders will be made for the provision of submissions with respect to the question of costs.

Associate:

Dated:    21 December 2023