Australian Community Pharmacy Authority v Ibram Hanna [1997] FCA 33 (6 February 1997)

CATCHWORDS

HEALTH LAW - application for approval to supply pharmaceutical benefits - eligibility criteria under Rules determined under s 99L National Health Act 1953 - meaning of 'shortest lawful access route' between premises - factors relevant to identify "access route".

HEALTH LAW - application for approval to supply pharmaceutical benefits - eligibility criteria under Rules determined under s 99L National Health Act 1953 - "definite community need" - whether "isolation from, or a poor, public transport system" is compendious expression or expression of two separate and necessary conditions - whether vehicular usage by population relevant - use of survey evidence.

National Health Act 1953 ss 90, 99K, 99L and 105AD

Administrative Appeals Tribunal Act 1975: ss 33 and 44

Smoker v Pharmacy Restructuring Authority [1994] FCA 1487; (1994) 125 ALR 577

Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1997) 141 ALR 59

Pharmacy Restructuring Authority v Chatfield (1993) 116 ALR 76

Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589

Big Country Developments Pty Ltd v Australian Community

Pharmacy Authority (1995) 40 ALD 32

The Pharmacy Guild of Australia v Australian Community

Pharmacy Authority (Branson J, 20 November 1996,

unreported)

Re Pochi and Minister for Immigration and Ethnic Affairs

(1979) 26 ALR 247

No SG 102 of 1996

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY v IBRAM HANNA

Mansfield J

Adelaide

6 February 1997

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 102 of 1996

)

GENERAL DIVISION )

BETWEEN:

AUSTRALIAN COMMUNITY

PHARMACY AUTHORITY

Applicant

- and -

IBRAM HANNA

Respondent

MINUTES OF ORDER

CORAM: Mansfield J

PLACE: Adelaide

DATE: 6 February 1997

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The matter be referred back to the Administrative Appeals Tribunal for further consideration of its conclusion in relation to r5(a)(i) of the applicable Rules under s99L of the National Health Act 1953.

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

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 102 of 1996

)

GENERAL DIVISION )

BETWEEN:

AUSTRALIAN COMMUNITY

PHARMACY AUTHORITY

Applicant

- and -

IBRAM HANNA

Respondent

REASONS FOR JUDGMENT

CORAM: Mansfield J

PLACE: Adelaide

DATE: 6 February 1997

This is an appeal by the Australian Community Pharmacy Authority ("ACPA") from a decision of the Administrative Appeals Tribunal ("AAT") given on 7 November 1996.

The AAT set aside the decision of the ACPA made pursuant to s99K(1) of the National Health Act 1953 ("the Act") recommending to the Secretary, Department of Health and Family Services ("the Secretary") that the respondent Ibram Hanna ("Mr Hanna") not be approved for the purposes of supplying pharmaceutical benefits at or from premises situate at Shop 1A, Honeypot Shopping Centre, Honeypot Road, Hackham West, South Australia ("the premises"). The AAT remitted the matter to the ACPA with the direction that it recommend to the Secretary that Mr Hanna's application under s90 of the Act for the purpose of supplying pharmaceutical benefits at or from the premises be approved, and that the Secretary reconsider the application in light of the proposed substituted recommendation.

The appeal is, of course limited to questions of law: s44, Administrative Appeals Tribunal Act 1975 ("the AAT Act").

The background

On 8 May 1995, Mr Hanna applied under s90 of the Act for approval as an approved pharmacist in respect of the premises. On 6 September 1995, ACPA recommended that the application not be approved. Its reasons were then laconically expressed: "Rule 5(a)(ii) not met (definite community need not met)". On 11 September 1995 the Secretary by his delegate agreed with that recommendation and informed Mr Hanna accordingly. Detailed reasons for its recommendation, provided under s28 of the AAT Act, were given by ACPA to Mr Hanna on 27 September 1995.

Part VII of the Act deals generally with the provision of pharmaceutical benefits. The genesis of the relevant provisions of that part of the Act is of relatively recent origin.

On 6 December 1990 the Minister of State for Aged, Family and Health Services entered into two written agreements with The Pharmacy Guild of Australia, one generally concerning a remuneration package for approved pharmacists in respect of the supply by them of pharmaceutical benefits under the Act, and the other in relation to the implementation of a restructure package for approved pharmacists in Australia. That led to amendments to the Act effected by the Community Services and Health Legislation Amendment Act 1990, including the establishment of the ACPA (initially called the Pharmacy Restructuring Authority). Its functions included the consideration of applications by pharmacists under s90 of the Act for approval of pharmacists by the Secretary. By amendments then introduced, the Secretary was empowered to grant such an approval only if the application was recommended by the ACPA. The amendments initially had a sunset date of 31 March 1995 but that was extended by the National Health Amendment Act 1995 to 30 June 2000. Those amendments introduced s99K(2) which required the ACPA, in making a recommendation, to comply with the relevant guidelines determined by the Minister under s99L of the Act and obliged the Minister by s99L to determine in writing such guidelines, which were to be disallowable instruments for the purposes of s46 of the Acts Interpretation Act 1901. Part of the objective of that agreement and the amendments was to reduce the number of pharmacies throughout Australia, and the agreement provided on the topic of new approvals:

"8.4 New approvals will only be issued where there is a demonstrated community need.

8.5 Subject to the guidelines issued under the Act not being disallowed by the Federal Parliament, the Authority will consider applications for approval based on the following guidelines:

(a) a new approval will not be granted where there is an existing approved pharmacy operating within 5 kilometres by normal access routes from the proposed site;

(b) a new approval will require the demonstration of a definite unmet public need;

(c) a new approval will not be granted if a closure or amalgamation payment has been made with respect to a previous approved site within 5 kilometres of the proposed new pharmacy;

. . ."

In general terms those provisions were reflected in the Minister's initial determination of guidelines under s99L of the Act. I note in particular the expressions "definite unmet public need" and "normal access routes" and the five kilometre distance specified. The background to that legislation is set out in some detail in the judgment of Hill J in Smoker v Pharmacy Restructuring Authority [1994] FCA 1487; (1994) 125 ALR 577 at 582-585.

On 24 April 1995 the Minister for Human Services and Health entered into two further written agreements with The Pharmacy Guild of Australia on the same topics as the earlier agreements, including the relevant objective of maintaining the benefits of restructuring and continuing to enhance the development of an "effective, efficient and well-distributed community pharmacy service in Australia". It recorded that its intention was not to provide for an increase in the number of approved pharmacies under the Act but rather to encourage relocation, although "... in some few circumstances new approvals might be warranted." It also specified matters which the Minister would include in determining the rules under s99L for the determination by the ACPA of any new application for approval. Those matters were duly reflected in new rules, to which I shall refer shortly; they were not in the same terms as the earlier guidelines published under s99L. The criteria prescribed under the relevant rules are in some respects not so stringent as the initial guidelines. At that point, as the Minister's Second Reading Speech in support of the National Health Amendment Act 1995 made clear, the number of approved pharmacies had reduced to "about the correct level".

Division 2 of Part VII of the Act deals with the supply of pharmaceutical benefits by the Commonwealth. Section 85 provides for the payment by the Commonwealth in respect of the supply of pharmaceutical benefits. Section 87 provides that an approved pharmacist may not demand or receive a payment in respect of the supply of a pharmaceutical benefit, other than a payment from the Commonwealth, except in the limited circumstances and to the limited extent specified for the supply of the pharmaceutical benefit (such amounts being periodically adjusted under s99G of the Act), although in addition in certain cases an approved pharmacist may, in respect of the supply of a pharmaceutical benefit in respect of which there is in force a determination by the Minister under s85B of the Act charge the person to whom it is supplied an additional amount. Section 89 restricts the entitlement of persons to receive pharmaceutical benefits so that they may only be supplied by an approved pharmacist at or from premises in respect of which the pharmacist is for the time being approved, and subject to certain other conditions. (I have eliminated from those references matters relating to supply of pharmaceutical benefits by medical practitioners or hospital authorities as they are not relevant for present purposes).

The statutory regime thus effectively provides (as relevant for present purposes) that only an approved pharmacist may dispense pharmaceutical benefits, and then only upon quite controlled conditions. The acquisition of status under the Act as an approved pharmacist for the purpose of supplying pharmaceutical benefits at or from particular premises is clearly an important matter.

Section 90(1) provides:

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

Mr Hanna's application for approval in respect of the premises under s90 was, pursuant to subs(3A), referred to the ACPA. As stated above, subs(3B) provides that the Secretary's approval under subs(1) may be granted in respect of an application only if the ACPA has recommended the grant of the approval.

Section 105AD provides for the review by the AAT of an ACPA recommendation to the Secretary.

It was accepted by the parties before the AAT and to this appeal, and indeed on the initial hearing before the ACPA, that the relevant Minister's determination under s99L of the rules applicable to the application by Mr Hanna is Determination No PB 6 of 1995 which came into operation on 10 May 1995 ("the 1995 Rules"). It replaced Determination No PB 9 of 1993, effective from 4 August 1993 ("the 1993 Rules"). It was replaced in turn by Determination No PB 18 of 1995 which came into operation on 1 January 1996 ("the 1996 Rules").

Rules 3-9 of the 1995 Rules relate to approval to supply pharmaceutical benefits. Again, it is common ground that the only directly relevant part of those rules both for the purposes of the review by the AAT and for the purposes of this appeal are Rules 2, 4 and 5(a)(i) and (ii). They provide:

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

5. Approval of a pharmacist under section 90 of the Act in respect of particular premises must be recommended if:

(a) (i) those premises are situated at least 2 kilometres, measured door to door by the shortest lawful access route, from the nearest other premises in respect of which a pharmacist is approved under section 90 of the Act; and

(ii) the Authority is satisfied that there is a definite community need for pharmaceutical services in the area in which those premises are situated; and

(iii) [not relevant]"

and Rule 2 in so far as it defines "definite community need" is as follows:

" "definite community need", in relation to the catchment area serviced or proposed to be serviced by a pharmacy, means that none of the following conditions applies to the area:

(a) that the catchment area has a population of less than 3,000 for most of the year;

(b) that the proportion of disadvantaged persons (aged persons and persons who are unemployed or receive pensions) is less than 10 per cent and can be reasonably serviced by other means;

(c) that the catchment area does not have the equivalent of a full-time medical practitioner;

(d) that the catchment area is being adequately serviced by other approved pharmacists;

(e) that the total number of claimable PBS prescriptions and RPBS prescriptions claimed by approved pharmacists in respect of the catchment area in the last 12 months is less than 3,000;

(f) that isolation from, or a poor, public transport system to adequate shopping does not hinder the bulk of the population;

(g) that the population is mobile and contains a high proportion of commuting workers;

(h) that the catchment area has no general shopping facilities".

Both the primary decision maker and the AAT had their principal focus on whether the requirements of r5(a)(i) and (ii), of course incorporating the conditions in the definition of "definite community need", were met. There was no issue before the AAT that conditions (a) (b) (c) and (e) of that definition do not apply.

It will be noted that the expressions in the 1995 Rules have changed from the earlier expressions in the agreements of 6 December 1990, and earlier Guidelines, in particular by the phrase "definite community need" and its definition, by the phrase "shortest lawful access route", and by the two kilometre distance specified.

It is necessary to refer briefly to the location of the premises.

The premises are in the suburb of Hackham West, an outer southern suburb of Adelaide and in what is called the Honeypot Shopping Centre. They are some distance from the Colonnades Shopping Centre ("the Colonnades"), a substantial regional centre south of Adelaide. The Honeypot Shopping Centre is but a small collection of shops. The precise distance of the premises from the Colonnades was in issue before the ACPA and the AAT, as the two nearest existing pharmacies from which the dispensation of pharmaceutical benefits is approved are each located in the Colonnades, namely a Chem Mart chemist and Carrig Chemists.

The issue required to be addressed under r5(a)(i) gave rise to the critical question of identifying the "shortest lawful access route" measured door to door from the premises to either Chem Mart or Carrig Chemists in the Colonnades.

Honeypot Shopping Centre is on a road called Honeypot Road, which at that point runs roughly east and west. To drive to the Colonnades, one travels along Honeypot Road initially west and then to the north as it veers north to form the stem of a T junction with a road called Goldsmith Drive. Goldsmith Drive runs approximately east and west, and at the junction one turns left again to travel west along Goldsmith Drive. A little distance along Goldsmith Drive, it is necessary to turn right to travel roughly north into a roadway giving access to the eastern end of a substantial car parking area which is part of, and is provided for users of, the Colonnades. The car parking area is laid out so that a vehicular user could not drive diagonally across it. Although I was not specifically informed of the measurement, it is implicit in the submissions of both counsel and from the agreed information about door to door distances for pedestrians between the premises and the nearer of the two chemists in the Colonnades that that distance so travelled by car is marginally over two kilometres. To walk that route, including using designated pedestrian pathways within the Colonnades car park area is a distance of 2077 metres. To walk that route, but to cut diagonally across the car park instead of using designated pedestrian pathways as soon as the route enters the car park area is a distance of 1969 metres. There are also three informal pathways or tracks across paddocks which, it was contended, should have been used for the purposes of the measurement, the use of any one of which by itself and permitting use of designated pedestrian pathways in the car park reduced the distance to under 2 kilometres; the various options produced a range between 1985 metres and 1820 metres. Each involved cutting across open land on used dirt (in one case, partly dirt) informal pathways so as to create very roughly a diagonal passage against use of the made roadways and footpaths. (The AAT reasons refer to four informal routes, including one depicted in Exhibit R14(5), but that exhibit seems to depict the route along the made footpaths adjacent to the roadways and then diagonally across the car park area. The point does not affect matters raised on this appeal).

The AAT decision

The AAT addressed the following issues:

(1) whether compliance with the "guidelines" (sic) is mandatory, or whether substantial compliance is sufficient.

It plainly follows from the Full Court's decision in Smoker (above) that the Rules, as the earlier Guidelines, must be complied with when determining whether an application should be granted. That decision was applied by the AAT, and the issue was not further ventilated on this appeal.

(2) shortest lawful access route

It concluded that the shortest lawful access route from the premises door to door to the nearest existing pharmacist's premises in the Colonnades is in excess of 2 kilometres. It excluded the options of traversing the Colonnades car park diagonally, and of using any one of the unmade informal pathways from available options as lawful access routes. Thus it found that the premises fell within the prescription of Rule 5(a)(i) of the 1995 Rules.

(3) survey evidence

The AAT ruled that it would accept survey evidence tendered to it, but "without placing great weight on it. Instead, the Tribunal will use the survey evidence where it supports other evidence before the Tribunal."

(4) definite community need

It was accepted that criteria (a) (b) (c) and (e) of the definition did not apply to the area. It concluded also that conditions (d) (f) (g) and (h) did not apply so as to prevent a conclusion that a definite community need existed, and that it was satisfied in the terms of r5(a)(ii). The conclusion that conditions (g) and (h) did not apply to the area was not challenged on appeal, so it is not necessary to refer further to that part of the AAT's reasons. However, issues were raised on appeal based on its approach to conditions (d) and (f) and it will be necessary to consider the AAT's reasons on those topics in some detail.

Thus, the AAT concluded that both r5(a)(i) and (ii) were met, and it directed the ACPA to reconsider the application according to its reasons and to recommend to the Secretary that the application be granted.

In approaching the matters raised on the appeal, I am guided by the High Court's recent comments on what may constitute a matter of law. In Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1997) 141 ALR 59 at 62-63 the Court (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) said:

"The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated. In Hayes v Federal Commissioner of Taxation ((1956) [1956] HCA 21; 96 CLR 47), Fullagar J emphasised the distinction between the factum probandum (the ultimate fact in issue) and the facta probantia (the facts adduced to prove or disprove that ultimate fact). His Honour said (Hayes [1956] HCA 21; (1956) 96 CLR 47 at 51):

Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.

In Collector of Customs v Pozzolanic Enterprises Ltd ((1993) [1993] FCA 456; 43 FCR 280), the Full Federal Court spoke of the distinction between law and fact in a statutory context as resting upon "value judgement[s] about the range of [an] Act" which, the court said, necessarily raised questions of law (at 289).

Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic (at 287), after referring to many cases, the court identified five general propositions:

1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law (Jedko Game Co v Collector of Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1972] UKHL 6; [1973] AC 854).

2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact (Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60 at 78; NSW Associated Blue-Metal Quarries Ltd v FCT (1956) 94 CLR 509 at 512; Neal v Secretary, Department of Transport (1980) 3 ALD 97 at 107-108; Jedko (1987) 12 ALD 491).

3. The meaning of a technical legal term is a question of law (Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 at 137-138; Lombardo v FCT [1979] FCA 65; (1979) 40 FLR 208 at 215).

4. The effect or construction of a term whose meaning or interpretation is established is a question of law (Life Insurance Co of Australia [1925] HCA 18; (1925) 36 CLR 60 at 79).

5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law (Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) [1985] FCA 312; (1985) 8 FCR 264 at 277 per Sheppard and Burchett JJ).

In Pozzolanic, the Full Court qualified the fifth proposition. The court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact (Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 288 citing Hope [1980] HCA 16; (1980) 144 CLR 1 at 8)."

The Court observed that such general expositions of the law are helpful in many circumstances, but of course will not be of universal utility as each case may give rise to complex and different issues. Nevertheless, in the present circumstances, I think that passage provides clear guidance as to how to properly address the matters raised.

"Shortest lawful access route"

After reviewing the submissions and the evidence, and finding that the use of the several informal pathways or tracks was lawful - there is no challenge to that conclusion - the AAT addressed the meaning of "access". It concluded, in part based upon Pharmacy Restructuring Authority v Chatfield (1993) 116 ALR 76, that:

"... the words 'lawful access route' in their totality require that a route be not only lawful, but also accessible. The word 'access' requires that the route have an element of accessibility in the sense that it be easily accessible, safe, and there are no impediments to its use such as the existence of barriers and obstacles in the path."

At my invitation, during submissions, the ACPA proposed a formulation of the legal test for the phrase 'access route' as

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

It was contended that the AAT had fallen into error by measuring the eligibility of a route to be an access route by assessing factors, such as ease of access, safety and the significance of impediments, having regard to usage not by an ordinary or healthy member of the community but also taking into account those members of the public who may have particular difficulties with a route, such as elderly or frail persons, the disabled and parents with young children. The AAT clearly reached that conclusion, in the following terms:

"The Tribunal ... believes that in a society which promotes access and equity for disabled people and the old and infirm, and where planning steps are taken to improve access for disabled persons and minimise discrimination the Tribunal would have to take into account the ability of such persons to use the routes in question. The Tribunal has not limited this analysis merely to disabled persons, but has considered other groups of people whom certain routes may be unsatisfactory, including the elderly and parents with young children. The Tribunal's view is supported by Chatfield (supra) where such principles were imported into the words "definite unmet public need". Whilst it could be argued that such a reading resulted from the specific words then in question, the Tribunal believes that the word "access" imports similar concepts."

Pharmacy Restructuring Authority v Chatfield (above) did not concern the meaning of "access route". It was concerned with the proper legal test of "a definite unmet public need" under earlier Guidelines, and in respect of the predecessor to r5(a)(i) - the distance criterion - Davies and Lee JJ at 79 said that, when it applies, it abrogates town planning principles. The effect of that observation was to indicate that, if the proposed premise was within the (then) five kilometre limit, no matters of public convenience or public demand could alter the consequence that approval could not be granted to the application. At one point, when referring to Chatfield (above) the AAT may have been using that case for a somewhat different and appropriate purpose, in the reference:

"As stated above, their Honours also made it clear that the 1993 Rules were not to be read restrictively but were to be given their full and proper effect. The Tribunal believes that this principle also applies to the interpretation of 'shortest lawful access route'."

(See also French J in Chatfield at 93-94). However, the AAT elsewhere clearly used that passage in Chatfield (above) for the specific purpose of supporting its conclusion as to the meaning of the word "access". In my view that was not appropriate. It does not routinely follow, however, that the AAT's conclusion as to what was encompassed within the meaning of the term "shortest lawful access route" was in error. I add that it is not clear to me how the AAT used principles of town planning and of public demand to assist it in reaching its conclusion as to the meaning of "access route".

Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589 was a removal case where the issue was whether the premises to which the pharmacy was proposed to be removed were within 500 metres by "normal access routes" of the existing premises. The proposed premises were within 500 metres walking distance from the existing premises, but because of a railway line running along the roadway the driving distance was much longer. The walking route in question was a railway footbridge over a railway line, open for public use and regularly used, and with access and egress from the footbridge by ramps or stairs. There was no difficulty in the finding that it was a normal access route; the issue in the case arose from the use of the plural "routes" in the then relevant Guideline. The Full Court (Wilcox, Foster and Whitlam JJ) concluded that that meant 'by at least one normal access route' to achieve a practical and fair result, rather than to identify all "normal" access routes that existed and to determine whether each was within the prescribed measurement. It observed at 596-7:

"It is practical because it will normally be easy for the Authority to determine whether or not there is at least one normal access route of not more than 500 metres between the two locations. It is sensible because it deals with the problem in market terms; and that was the concept underlying the original agreement between the Minister and the Pharmacy Guild."

In that case there was no emphasis upon the word "access". The Court did comment, at 594, that a 'normal' access route would be one which is "generally available, suitable and regularly used." It is reasonable to suspect that the present expression in the 1995 Rules is, at least in part, prompted by the issues arising in that earlier decision. Certainly, if the views of Davies J at first instance (1994) 34 ALD 534 held sway, namely that the ACPA should make a value judgment about which routes were "normal" access routes, the present Rules would obviate the practical difficulty and the uncertainty attached to that process (see the remarks of the Court on appeal at 593-594).

That decision does go some way towards resolution of the present issue. It makes the point that a rule in terms such as r5(a)(i) is expressed objectively. It is not apparent that it invites matters of fine judgment and opinion. Indeed r2 defining "definite community need" seems also to endeavour to reduce the subjective or judgmental component of such a term, although there are still expressions involving questions of degree and balance in subrules (b), (d) and (f) of that definition. As Lindgren J observed in Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 40 ALD 32 at 43:

"... the question of distance is a simple matter of correctly interpreting the notion of 'shortest possible access route door to door' ... identifying the route ... which satisfies that description and measuring the distance of that route. Such a question is different in kind from the issues involving opinion, judgment and assessment which fell for determination in the cases to which I have referred."

It provides a specific and inevitably somewhat arbitrary rule of thumb which must be met, irrespective of the community structure or its need, before a new approval under s90 may be granted. It is, in a sense, going behind the function of such a rule of thumb to approach it in a way which has regard to the composition of, and particular vulnerabilities, of one or some (it is unclear to what number) of the members of a community. Such factors are more appropriately addressed, to the extent the definition in r2 admits, under r5(a)(ii).

The expression "shortest lawful access route" clearly carries with it the idea that there will be other access routes, perhaps even of only marginally greater distance. It is hard to see why all access routes must be available to all members of a community, whatever their strength or frailty. A set of steps may provide access to a building or premise, even though there may be a not insignificant group in a community who may be unable to use it. None of the dictionary definitions referred to by the parties would suggest that the steps in those circumstances would not provide a means of access to that premise. Indeed, it would be contrary to practical common sense and normal usage to suggest otherwise. See The Macquarie Dictionary, 2nd Revision, at 55; The Oxford English Dictionary, 2nd edition, Vol 1 (1989) at 72; The Concise Oxford Dictionary of Current English, 9th ed, (1995) at 8. That approach does not ignore the position of the elderly, the frail, or the disabled in a community; their position may be considered in having regard to the factors relevant under r5(a)(ii). It avoids the consequence that a common expression, used in a practical day-to-day sense, has a particular and special meaning in r5(a)(i). There are no indications in the 1995 Rules, nor from the history giving rise to the legislation or in the earlier Guidelines to support such a conclusion.

Accordingly, in my judgment, the AAT fell into error in its determination of the meaning of "lawful access route". It is an expression which is used, in the Rules, in its normal everyday sense. Subject to one possible reservation, that sense is encompassed in the formulation put forward by the ACPA. It is also encompassed in the formulation adopted by the AAT referred to at the commencement of this part of my judgment, if that formulation is looked at absent the context and process of reasoning which give rise to it. The possible reservation is simply the need for permanency; I do not think a route is an access route if it can only be used for a short period each year, eg if the route is mostly underwater. That could not have been intended when the Rules were formulated. It would be irrational to produce a conclusion on an application under s90 depending on whether the suggested access route was available to be used at the time of the application or at the time of the hearing or only for some portion of the year. Equally, the fact that a route - even a major roadway - is subject to occasional flooding would not have been intended to be excluded as an access route. It is, in my view, a matter for practical common sense. So long as the words "generally available" carry that import, then I think the formulation put forward by the ACPA is a correct one. It is not, of course, the only proper formulation, nor necessarily the best one, but it conveys, I think, the common usage sense which I have referred to above.

I note that Branson J in The Pharmacy Guild of Australia v Australian Community Pharmacy Authority (20 November 1996, unreported) also had to address the expression "shortest lawful access route", but for reasons which appear in the reasons for judgment there was no issue as to the precise meaning of those words. The parties did not contest a measurement made of a little under two kilometres available by driving on made roadways as a relevant lawful access route. It then becomes simply a question of fact whether a particular suggested route provides "access" between the premises in question. There will be suggested routes which, as a matter of practical common sense, do not meet that description: steepness, danger, obstacles and the like will provide obvious examples. There will come a point at which such impediments will be of such a nature as not to destroy the quality of the route as an access route. Generally, where that line is crossed is a question of fact. A route is not an access route for the purposes of the Rules if only the fittest and strongest can use it, any more than it may be an access route even if a particular person or persons by reason of age or disability cannot use it.

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

It remains to determine whether the AAT's decision in fact reflected what I have determined to be an inappropriate test. As I have said, its formulation that the route be "easily accessible, safe, and there are no impediments to its use such as the existence of barriers and obstacles in the path", does not on its face reveal error, although "easily" might overstate the matter a little. Its error lay then in assessing those considerations not in a generally understood way but having regard to the ability of the elderly, the disabled and parents with small children to use those routes. It concluded:

"The routes which were contended by the respondent as being lawful access routes were in a variety of conditions. The applicant criticised several of these routes, submitting that they were not sealed routes, they contained barriers such as embankments, the routes could be subject to flooding or be unsuitable for passage in certain types of weather and dust from unmade paths could be unsuitable for asthmatics. The Tribunal must draw a line at some stage and determine whether these conditions mean that a route will not be accessible. The Tribunal is however surprised, in the light of government policies which have been aimed at improving access for disabled persons and the elderly, that the respondent advanced a submission that a route can be a lawful access route even though certain members of the community will not be physically capable of using it."

Its findings of fact about each of the informal routes were that none satisfied its definition of lawful access route. In one case, that was because of an embankment at its start, and because it is subject to flooding; sections of it become muddy in wet weather; it is at times covered by tall grasses; it is poorly lit; and there are realistic concerns for the safety of its users. In the other cases, that was because (some) local residents find them unsafe, and because at certain times of the year they are unusable as they are subject to flooding, and in winter they may become muddy.

It may well be that those considerations from the characteristics and features of each of the informal pathways would result in the AAT concluding, using the approach I have referred to above, that the suggested routes are not access routes for the purposes of r5(a)(i). That is a matter of fact for it to determine. But it is plain that, in making its assessment, it did consider the ability of the elderly or frail, the disabled and parents with young children in reaching its conclusion.

Accordingly, for that reason, I think this appeal should be allowed and the matter remitted to it for consideration in accordance with these reasons. Whether its conclusion of fact on this question is then altered is a matter for it.

In my view the AAT correctly approached the question of how to treat the option of a person walking diagonally across the car parks of the Colonnades. Its conclusion was:

"The Tribunal finds that it is nonsensical to expect a person to travel diagonally across the Colonnades car park in a straight line when the car park is in use. To require such would be to overlook the existence of trees, aisles and parked cars. There may be occasions when it would be possible to take a more or less diagonal route through the car park, but the Tribunal cannot accept an inexact route which will change every few minutes according to whether cars are placed as obstacles in the way of such a path. The Tribunal believes that for a route to qualify as the shortest lawful access route there must be a degree of permanency which is not present in these routes. Hence the shortest lawful access route from the premises to the pharmacies at the Colonnades must follow the indicated roads, pedestrian access ways and paths. Any other route is subject to change and therefore inadequate for the purpose of determining whether the 2 kilometre rule is met. This applies in particular to applications where the satisfaction of the 2 kilometre rule is a borderline situation. The 1995 Rules have prescribed 2 kilometres as an arbitrary distance requirement which must be met, and therefore routes which are subject to constant fluctuation should not be accepted as sufficient."

One can conjure examples of temporary arrangements which might shorten the distance between two points, but which have no element of permanence. The fact that the Rules provide an exclusory distance test which will, or will not, admit of the establishment of a new approved pharmacy at a particular and permanent location, in my view, indicate that the term "access route" does, as the AAT concludes, require the element of continued availability. That is confirmed by the other distance provisions in the Rules: rr6(a), 6(b), 6(c), 6(d), 17, 18 and 19. It is apparent from those Rules, especially those relating to the Remote Pharmacy Allowance, that eligibility dependent on the access routes contemplated should not, generally, be subject to the vagaries of the weather, or of some temporary construction or works. It is equally clear, in my view, that the shortest lawful access route for the purposes of r5 should not vary in its determination depending on the season, or the climate conditions at the time of the application or the time of the hearing. The passage of cars and the parking of cars so as to obstruct pedestrian passage is exactly what the car parking areas are designed to do. The Rule does not, in my view, contemplate a circumstance whereby a pedestrian should have to wait, to dodge and weave, to run or pause to avoid traffic movement in its conception of access route. It does however contemplate an access route available generally during the day, and not only when shopping facilities including those for pharmaceutical services are closed.

"Definite Community Need" - Rule 2 clause (f)

Mr Hanna, to succeed in his application, had to satisfy the ACPA of a "definite community need" for pharmaceutical services in the area in which the premises are situated: r5(a)(ii). That term is defined in r2 to mean that none of eight specified conditions applies to the area, including the condition:

"(f) that isolation from, or a poor, public transport system to adequate shopping does not hinder the bulk of the population".

It is a less than clearly expressed condition.

The AAT concluded that the condition (f) focus is primarily on the quality of the public transport system within the catchment area and its ability to transport people to adequate shopping. As to the meaning of "adequate shopping", as subrule (h) referred to "general shopping facilities", it regarded adequate shopping as including for pharmaceutical services, and that "adequacy" connoted availability and accessibility at a reasonably broad and convenient range of times to shopping including pharmaceutical items. Because of the punctuation, it treated the expression "isolation from, or a poor, ..." as both applying to the public transport system and that those matters applied in a compendious way rather than prescribing two alternatives both of which had to be met. It identified its role, therefore, as considering:

"... whether there is a definite community need for the establishment of a pharmacy in the catchment area, hence the purpose of paragraph (f) is to assess whether the needs of the population of the catchment area are currently serviced by way of a public transport system which gives the population access to pharmaceutical services."

Its conclusion, having determined the proper scope of its inquiry, was that the condition does not apply because the existing public transport system "fails to assist greatly in improving accessibility to facilities". The only nearby adequate shopping, including a pharmacy, available after 5.30 pm on weekdays and on Sundays involved potentially a two hour bus trip involving two separate buses. Such a system (it found) is inadequate to meet the catchment population's needs for pharmaceutical services.

The ACPA raises only one point on appeal regarding that approach, namely that the AAT should have treated the expression "isolation from, or a poor, public transport system" as separate requirements each of which had separately to be established, rather than as expressing alternative ways of reaching a compendious conclusion as to the efficiency of the public transport system. It was submitted that the AAT wrongly treated the word "or" in that phrase as meaning "and". That is significant because the AAT found that the population of the catchment area was not isolated from the public transport system (however good or bad) to adequate shopping, but that the population's needs for pharmaceutical services is hindered on Sundays and at nights by an inadequate public transport system.

It is clear enough, and not really contested in argument, that the purpose of this condition being specified is to preclude the approval of new premises if the community in the area can, by use of the available public transport system, have access to adequate shopping including for pharmaceutical services. If so, there is no need for a new pharmacy. Once that step is taken, then in my view the approach of the AAT is seen to be correct. If the population of the catchment area is not isolated from the public transport system to a shopping area including for pharmaceutical services, but it (say) runs once a day only, then the purpose of the condition would not be achieved by then (assuming all other criteria were met) having to refuse the application. In my view, the focus of that condition is clearly upon the question of whether, by public transport, the population in the catchment area has access to adequate shopping including for pharmaceutical services. Public transport may not provide that access either because it does not reach geographically to the area, or because the service it offers is insufficient for that purpose. Accordingly I do not consider that the AAT is wrong in law on the matter raised.

It was also submitted that the AAT erred in addressing this condition by failing to have regard to the mobility of the bulk of the population by access to private forms of transport. The AAT rejected that submission, because private transport usage was separately addressed under r2(g); thus it said that this condition must focus on the quality of the public transport system, not on the levels of its use.

There is a mix of conditions in r2, some effectively prescribing minimum objective demographic requirements (subrules (a), (b) in part, (c), (e) and (g)), some focusing on the availability within the area of pharmaceutical services from outside the area (subrules (b) in part and (d)) and some focusing on the capacity of the population within the area to procure pharmaceutical services outside the area (subrules (b) in part, (f) and (g)). It is plain that subrule (g) directs attention to the ability of the population to leave the area to get pharmaceutical services; it has chosen to do so in a way which involves a dual set of considerations. If subrule (f) is construed so as to incorporate the test of whether the population (or the bulk of the population) is mobile, then there seems to me to be little purpose in subrule (g) at all. That is because it would almost certainly be the case that a population with access to motor cars (to meet the first part of subrule (g)) would not be hindered from access to adequate shopping by an absent or poor quality public transport system. I do not think the introduction of the word "bulk" in relation to the population diminishes that point. It is really an expression designed to ensure that subrule (f) is applied to the population in a broad sense rather than an absolute sense. It seems to me therefore that subrule (f) is premised upon it being desirable for a public transport system to be available to provide the bulk of the population with the means of getting to adequate shopping, as that expression was used by the AAT, and that the AAT was correct in concluding as it did.

"Definite Community Need" - Rule 2 subclause (d)

This condition requires that the catchment area for the premises is not already being adequately serviced by other approved pharmacies. It was contended that the AAT fell into error in making its finding on this topic by taking into account an irrelevant consideration, namely certain survey evidence. It is not submitted that the survey evidence was generally inadmissible, or that the AAT misdirected itself in deciding to admit it at all.

The AAT concluded that it would accept the survey into evidence "without placing great weight on it. Instead, the Tribunal will use the survey evidence where it supports other evidence placed before the Tribunal." It was entitled to do so: s33 of the AAT Act; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247.

In relation to this particular condition, the AAT reviewed the evidence including the survey evidence, and concluded:

"The Tribunal has balanced the evidence of the applicant, the local residents and other community members against that of the existing pharmacists working in the area and other witnesses called by the respondent and is satisfied that the catchment area is not adequately serviced by other approved pharmacists. The delivery services are insufficient to meet this need for the reasons stated above. The Tribunal also accepts the evidence of Mr Marks which indicates that there is a need for pharmaceutical services within the catchment area which by planning standards is currently insufficiently met by the existing pharmacies. The Tribunal has also considered the survey evidence and the petition (Exhibit A18) which indicate strong community support for a pharmacy, and taken in conjunction with all of the other evidence before the Tribunal lend further support to the finding that the population's needs for pharmaceutical items are currently inadequately met. Furthermore, the fact that none of the other criteria in the definition of definite community need apply helps indicate that this condition is also inapplicable."

It had observed about the survey evidence that it had "noted" the responses to the survey, "which although (it) has been accorded little weight, does lend some strength" to the submission of the applicant that there is strong community support for the establishment of a pharmacy in the catchment area. The other evidence it expressly considered included that of a planner, of a number of local residents, of doctors practising in the area, of a number of pharmacists working in the wider local council area, and of the applicant. Ultimately, the submission was that the AAT for the purposes of its conclusion used the survey material far more extensively that it indicated earlier in its reasons that it would do so.

In my view, there is no error of law on the part of the AAT demonstrated in this part of its reasons for decision. As it was accepted by the ACPA on appeal that the survey was properly received into evidence, albeit that its weight was slight, the AAT was entitled to have regard to it in making its decision. The weight given to a particular piece of evidence in reaching a conclusion, relative to the weight given to other evidence on the topic, generally does not fall within the description of an error of law. Although the expressions used by the AAT as to the weight to be given to the survey evidence at the time it was, in its reasons, discussing its receipt and when discussing its weight when considering this condition may be somewhat different, I do not think they demonstrate any error of law, nor indeed any real inconsistency in the expressions on the topic in the reasons themselves.

Accordingly, I consider that there is no error of law made out on this aspect of the appeal.

Conclusion

It follows from the above that the ACPA succeeds on its appeal, but only on the limited issue that the AAT, in reaching its decision on whether the requirement of r5(a)(i) of the 1995 Rules was satisfied, misdirected itself in formulating the test of an "access route" for the purposes of deciding if certain suggested informal pathways were eligible as "access routes" for the purposes of the measurement of two kilometres.

Accordingly, this appeal is allowed and the matter is referred back to the AAT for further consideration of its conclusion in relation to r5(a)(i) of the 1995 Rules in accordance with these reasons.

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

Associate:

Dated:

Counsel for the Applicant : Mr D Simpson

Solicitors for the Applicant : Australian Government

Solicitor

Counsel for the Respondent : Mr M Beamond

with him

Mr A S Clare

Solicitors for the Respondent : Mellor Olsson

Hearing Date : 18 December 1996