Alexander v Australian Community Pharmacy Authority [2010] FCA 189 (5 March 2010)

Last Updated: 10 March 2010

FEDERAL COURT OF AUSTRALIA

Alexander v Australian Community Pharmacy Authority [2010] FCA 189

Citation:		Alexander v Australian Community Pharmacy Authority [2010] FCA 189
Parties:		MICHAEL ALEXANDER, NARASIM ANAND RAJU and PHILIP HARDY v THE AUSTRALIAN COMMUNITY PHARMACY AUTHORITY, PHILIP COLASANTE, ADRIAN SEBASTIANO and ADAM SEBASTIANO
File number(s):		VID 881 of 2009
Judge:		BROMBERG J
Date of judgment:		5 March 2010
Catchwords:		ADMINISTRATIVE LAW – Judicial Review – Whether failure to take into account relevant considerations – Obligation to provide reasons for decision – Failure of reasons to deal with constituent facts to an ultimate fact – Whether omission from statement of reasons justifies an inference that matter not taken into account.
Legislation:		Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B) Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5 and 13 National Health Act 1953 (Cth), Part VII, ss 89, 90, 99J, 99K and 99N National Health (Australian Community Pharmacy Authority Rules) Determination 2006, Schedule 1, ss 6 and 9, Item 110, Item 201, Schedule 2, Items 301 and 302 and Schedule 3. Migration Act 1958 (Cth) s 430
Cases cited:		Ansett Transport v Wraith [1983] FCA 179; (1983) 48 ALR 500 Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 ARM Constructions v Commissioner of Taxation (1986) 10 FCR 197 ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 65 ALR 343 Carlisle Homes Pty Ltd v Barrett Property Group Pty Limited [2009] FCAFC 31 Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; (2009) 253 ALR 263 Collins v Repatriation Commission [1980] FCA 105; (1980) 32 ALR 581 Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 Department of Health and Ageing and Another (2009) 178 FCR 161 Dodds v Comcare Australia (1993) 31 ALD 690 Dornan v Riordan (1990) 24 FCR 564 Faulkner v Conwell (1989) 21 FCR 41 Federal Commissioner of Taxation v Cainero (1988) 15 ALD 368 Hunter v Transport Accident Commission [2005] VSCA 1; (2005) 43 MVR 130 Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 Mees v Kemp [2005] FCAFC 5; (2005) 141 FCR 385 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162   Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Oak Valley v ATSIC [1999] FCA 1751; (1999) 98 FCR 1 Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 Powell v Evreniades (1989) 21 FCR 252 R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 Re MIMIA; ex Parte Palme [2003] HCA 56; (2003) 216 CLR 212 Repatriation Commission v O’Brien [1985] HCA 10; (1985) 155 CLR 422 Ross v Costigan (1982) 59 FLR 184 Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 Sullivan v Department of Transport (1978) 20 ALR 323 Terry White Chemists Australia Fair v Secretary, Traill v McRae [2002] FCAFC 235 Turner v Minister for Immigration (1981) 35 ALR 388
Date of hearing:		10 February 2010
Date of last submissions:		10 February 2010
Place:		Melbourne
Division:		GENERAL DIVISION
Category:		Catchwords
Number of paragraphs:		102
Counsel for the Applicants:	Mr J Pizer
Solicitor for the Applicants:	Harris Legal
Counsel for the First Respondent:	Ms K Miller
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second, Third and Fourth Respondents:	Mr SCG Burley SC
Solicitor for the Second, Third and Fourth Respondents:	Rotstein Lockwood Reddy

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 881 of 2009

BETWEEN:	MICHAEL ALEXANDER First Applicant NARASIM ANAND RAJU Second Applicant PHILIP HARDY Third Applicant
AND:	THE AUSTRALIAN COMMUNITY PHARMACY AUTHORITY Respondent PHILIP COLASANTE Second Respondent ADRIAN SEBASTIANO Third Respondent ADAM SEBASTIANO Fourth Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	25 FEBRUARY 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.
2. On or before 7 days after the publication of the Reasons for Judgment in this matter, the parties file and serve submissions as to costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 881 of 2009

BETWEEN:	MICHAEL ALEXANDER First Applicant NARASIM ANAND RAJU Second Applicant PHILIP HARDY Third Applicant
AND:	THE AUSTRALIAN COMMUNITY PHARMACY AUTHORITY Respondent PHILIP COLASANTE Second Respondent ADRIAN SEBASTIANO Third Respondent ADAM SEBASTIANO Fourth Respondent

JUDGE:	BROMBERG J
DATE:	5 MARCH 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. Gisborne is located some 50 km north west of Melbourne. It has a population of about 5,200 residents. The town was formed in the 1850s to supply the needs of gold diggers bound for the goldfields of Castlemaine and Bendigo. At that time Gisborne was well serviced by beer halls, inns, coffee tents, smithies and other stores. Gisborne continues to be well serviced by a range of shops and other facilities including a number of pharmacies. This proceeding arises out of a contest as to whether or not Gisborne should have another pharmacy.
2. The proceeding concerns a proposed pharmacy, to be known as the Chemist Warehouse. Part of the necessary operation of any pharmacy is the capacity to supply pharmaceuticals under a pharmaceutical benefits scheme operated by the Australian government. The second, third and fourth respondents (‘the Chemist Warehouse respondents’) made an application for the Chemist Warehouse pharmacy to be approved as a supplier of pharmaceuticals under that scheme. For such an application to be approved, the Australian Community Pharmacy Authority (‘the Authority’) must recommend the grant of approval.
3. The Authority made such a recommendation on 27 November 2009. That decision is the subject of the challenge which the applicants have brought before this court under s 5 of the Administrative Decisions (Judicial Review) Act (1977) (Cth) (“the ADJR Act”).
4. The only ground upon which the challenge is based is that in arriving at its decision, the Authority failed to take a relevant consideration into account. The applicants contend that the Court should infer from a conspicuous silence in the Authority’s statement of reasons that the relevant consideration was not taken into account when the decision was made.
5. These reasons deal with that challenge. In so doing, the reasons identify the nature and content of the obligation upon the Authority to provide reasons under s 13 of the ADJR Act, and the extent to which any failure to do so, in the context of a range of other considerations, may lead to the inference that a relevant consideration was not taken into account.
6. For the reasons which follow, I determined to make the orders which were published on 25 February 2010, including the order that the application be dismissed.

THE STATUTORY FRAMEWORK

7. The provision of pharmaceutical benefits by the Commonwealth is regulated by a scheme. That scheme is to be found in Part VII of the National Health Act 1953 (Cth) (‘the Act’) and in the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 (Determination No. PB 23 of 2006) (‘the Determination’). In substance, the scheme aims to make available designated drugs and medical preparations to persons for whom they are prescribed, at the expense of the Australian Government, subject to the payment of financial contributions by those persons: Terry White Chemists Australia Fair v Secretary, Department of Health and Ageing and Another [2009] 178 FCR 161.
8. A person is not entitled to receive a pharmaceutical benefit unless it is supplied by an approved pharmacist: s 89 of the Act. A pharmacist may make application and be approved for the purpose of supplying pharmaceutical benefits at or from particular premises. Such approval may be given by the Secretary of the Department of Health and Ageing: s 90(1) of the Act. Prior to being dealt with by the Secretary, an application for approval must be referred to the Authority. Subject to some exceptions not relevant for current purposes, only after the Authority has recommended the grant of the approval may the Secretary make the approval: s 90(3A) and (3B) of the Act. Section 99K of the Act empowers the Authority to consider applications and to make a recommendation. In making a recommendation, the Authority must comply with the Determination: s 99K(2) of the Act. The Authority is established by s 99J of the Act and is constituted by five part–time members, including three pharmacists: s 99N of the Act.
9. Section 9 of the Determination prescribes when the Authority must recommend that an applicant be approved under s 90 of the Act in respect of particular premises. Depending upon the nature of the application, s 9 and Schedule 1 of the Determination identifies the requirements for approval. There are 14 different kinds of applications dealt with in Schedule 1. For each kind of application the prescribed requirements are identified.
10. The major issue raised by this proceeding concerns Item 110 of Schedule 1 which deals with an application for relocation to a large shopping centre. Item 110 provides as follows:

Relocation to large shopping centre

1. The proposed premises are in a large shopping centre. 2. There are: (a) for a shopping centre that contains at least 30, but fewer than 100, commercial establishments — no approved premises in the shopping centre; or (b) for a shopping centre that contains at least 100, but fewer than 200, commercial establishments — no more than 1 approved premises in the shopping centre; or (c) for a shopping centre that contains at least 200 commercial establishments — no more than 2 approved premises in the shopping centre.

11. Section 6 of the Determination sets out a number of definitions which are of importance. The phrase “large shopping centre” is defined as follows:

large shopping centre means a shopping centre that:

(a) has a gross leasable area of at least 5 000 m2; and

(b) contains a supermarket that occupies at least 1 000 m2; and

(c) contains at least 30 other commercial establishments; and

(d) has customer parking facilities.

12. The phrase “shopping centre” is also defined in s 6 to mean “a group of shops and associated facilities that is under single management”. The expression “single management” is then defined as follows:

single management, for a shopping centre or medical centre:

(a) means management of the centre as a whole:

(i) by 1 manager, or by 2 or more managers working cooperatively under an agreement; and

(ii) to encourage use of the centre as a single integrated facility; and

(iii) including management of the following matters for the centre:

(A) security;

(B) pedestrian and vehicular access;

(C) cleaning;

(D) signage;

(E) trading hours;

(F) marketing;

(G) maintenance of buildings, common areas and utilities; and

(b) does not include independent owners or tenants of premises in a building or centre that cooperate:

(i) on particular occasions; or

(ii) in relation to some but not all of the matters mentioned in subparagraph (a) (iii) in relation to the building or centre.

13. For the Authority to be satisfied in relation to the criteria in paragraph 1 of Item 110 of the Schedule requires an ultimate factual finding that the proposed premises are in a large shopping centre. Such a finding rests on the following necessary primary factual findings about the group of shops and associated facilities in which the proposed premises are to be located:

13.1 By reference to the s 6 definitions of “shopping centre” and “single management”, that the shops and facilities are managed as a whole:

13.1.1 by one manager or by two or more managers working cooperatively under an agreement;

13.1.2 to encourage their use as a single integrated facility;

13.1.3 including management of the following matters:

• security;

• pedestrian and vehicular access;

• cleaning;

• signage;

• trading hours;

• marketing;

• maintenance of buildings; and

• common areas and utilities; and

13.1.4 does not include independent owners or tenants that co-operate in the manner outlined in paragraph (b) of the definition of “single management”; and

13.2 By reference to the term “large” in the s 6 definition of “large shopping centre”, that the shopping centre has:

• a gross leasable area of at least 5,000 m2; and
• contains a supermarket that occupies at least 1,000 m2; and
• contains at least 30 other commercial establishments; and
• has customer parking facilities.
  

THE AUTHORITY’S USUAL PROCESSES

14. The parties tendered a statement of agreed facts regarding the processes of the Authority. The statement dealt with the Authority’s usual processes and also the process followed for the meeting of 27 November 2009 where the impugned decision was made.
15. The Authority’s usual process involves consideration of applications for the recommendation of the grant of approval at a monthly meeting. Agenda papers are prepared 10 days before each scheduled meeting so as to allow members to conduct an individual assessment of the applications. Copies of the agenda papers are prepared for each member, for the Secretary of the Authority and for the Secretariat. Agenda papers include all material relevant for the consideration of the application, including the application and any objections to it.
16. The Authority ordinarily considers between 30 and 40 applications at each meeting. Applications are recommended to be approved, recommended not to be approved or deferred. The time taken to consider an application depends on a range of factors including the complexity of the application and whether all supporting documents have being provided. The process for considering the applications is streamlined by a “header sheet” provided to each member. The header sheet summarises the criteria and sub criteria for each of the different kinds of applications which are dealt with in Schedule 1 to the Determination. The header sheet is intended to provide a process for ensuring that the relevant criteria are considered.
17. In relation to the first paragraph of 110 the header sheet says:

110 (1)

• Premises are within a large shopping centre:
• group of shops & associated facilities under a single management
• gross leasable area of at least 5,000 m²
• supermarket occupies at least 1,000 m²
• customer parking facilities
  

The s 6 definitions of large shopping centre, shopping centre and single management are set out in the header sheet but appear on the back page.

18. Additional materials are to be received at least 5 working days before a scheduled meeting. Upon receipt, they are forwarded to the members of the Authority for inclusion in the agenda papers. Additional materials received within 5 working days of a scheduled meeting are tabled at the meeting.

PROCESSES AT THE MEETING OF 27 NOVEMBER 2009

19. The meeting of 27 November 2009 commenced at 10.15 am and concluded at 2.35 pm. At that meeting the Authority considered 37 applications, of which 11 were applications for short distance relocation, 1 was an application for relocation to a private hospital, 4 were applications for a new pharmacy (general), 7 applications for a new pharmacy (rural locality), 3 were applications for long distance relocation, 1 was an application for relocation to an urban locality (additional pharmacy) and 7 were applications for relocation to a large shopping centre. Three applications were deferred. The remainder were either recommended to be approved or recommended not to be approved.
20. One of the 7 applications for relocation to a large shopping centre was the application made by the Chemist Warehouse respondents.

THE CHEMIST WAREHOUSE APPLICATION

21. On or about 16 October 2009, the Chemist Warehouse respondents applied to the Secretary for approval to supply pharmaceutical benefits. The Application sought approval in accordance with the provisions of Item 110 of Schedule 1 to the Determination, which deals with the relocation of a pharmacy to a large shopping centre. The relocation proposed by the application was to a pharmacy which would trade as “Chemist Warehouse” and be located at shops 29-31, Gisborne Village Shopping Centre, Gisborne. On 20 October 2009, the application was referred to the Authority.
22. The Chemist Warehouse application was accompanied by supporting materials. Those materials included:
    • A proposed “Ground Floor Plan” for the Chemist Warehouse premises;
    • A “Site and Ground Floor Plan” for all premises including outdoor carparks in the block bounded by Brantome, Robertson, Prince and Hamilton Streets, Gisborne (‘the Block’). The location of the proposed Chemist Warehouse premises was highlighted on the plan;
    • “Planning Property Reports” for various premises within the Block;
    • Various photographs of a range of premises and car parking areas in the Block, including photographs of an internal arcade and external signage on which “The Village, Gisborne” appears;
    • A statutory declaration of Michael Leon Minsky (‘the Minsky Declaration’), to which was attached a range of documents including extracts from various leases and correspondence;
    • A second statutory declaration from Michael Leon Minsky exhibiting a page from a lease which had been mistakenly omitted from the Minsky Declaration.
23. The application and the supporting materials referred to were distributed by the Authority to its members on 18 November 2009. By letter of 19 November 2009 the Chemist Warehouse respondents sought to supplement their application and provided to the Authority an additional statutory declaration made by Kevin Donovan (‘the Donovan Declaration’). That declaration attached another copy of the Site and Ground Floor Plan for the Block, extracts from various leases and a number of photographs of various premises on the Block. A copy of the Donovan Declaration was first provided to the members of the Authority at the meeting on 27 November 2009.
24. Each of the applicants in this proceeding was an objector to the application. In keeping with its usual practice, the Authority circulated letters dated 6 November 2009 providing notification of the application to a number of pharmacies in Gisborne, including those operated by the applicants. That notification advised that if the recipient was of the view that the requirements for approval were not satisfied, an attached check list together with supporting evidence could be submitted to the Authority no later than 20 November 2009.
25. By a letter of 25 November 2009, the solicitors for the third applicant wrote to the Authority objecting to the application. The letter made submissions in opposition and attached a site plan of the block. By letter of 26 November 2009, the solicitors for the first and second applicants wrote to the Authority. The letter consisted of a submission setting out the basis of the objection and a large bundle of supporting materials.
26. The timing of the provision of the objections and their supporting material is of some relevance. These documents were first provided to members of the Authority at the meeting on 27 November 2009.
27. A copy of the objection of the third applicant together with its supporting material was provided to each member.
28. The letter provided by the solicitor for the first and second applicants was copied and provided to each member of the Authority. The written submission and 3 or 4 pages of supporting material provided under cover of the letter were also copied and distributed to each member of the Authority. The remainder of the supporting material provided by the first and second applicants was not copied for each member, but a single copy of that material was tabled at the meeting. That supporting material included photographs of various premises, car parking facilities and adjacent street signage - “The Village Gisborne”. Additionally, this material included a submission with supporting materials made to the Authority in relation to a prior application made by the first and second applicants in November 2008 (‘the prior application’). In totality, the supporting materials of which only a single copy was tabled at the Authority’s meeting of 27 November 2009 comprised 91 pages. The vast bulk of that material related to the prior application.
29. As the material before the Authority shows, the Chemist Warehouse application acknowledged the existence of two groups of premises on the Block. In both the Minski Declaration and the Donovan Declaration, these groups were identified as the Gisborne Village Shopping Centre (‘GVSC’) and the Gisborne Village Market (‘GVM’) and thereafter defined as “the Centre”. Having adopted that definition, each of the Minski and Donovan Declarations set out evidence by reference to facts and circumstances pertaining to “the Centre” without differentiation between its constituent parts.
30. That evidence relevantly stated that the Centre was owned by a single owner and managed on the owner’s behalf by the same managing agent. A letter from the owner, attached to the Minski Declaration, contained the statement that the Centre was under single management. The Donovan Declaration also contained that statement.
31. Furthermore, the owner’s letter stated that the managing agent was “responsible for all aspects of the running of the Centre” and included a non-exhaustive listing of those management responsibilities.
32. The Donovan Declaration relevantly said:

“I hereby verify that the Centre are (sic) under single management and my management responsibilities include, all maintenance of the buildings and common areas; co-ordination of all security requirements; marketing program for the Centre; maintenance and control of all vehicular and pedestrian access within and around the Centre; rent and outgoings collection amongst many areas of responsibility”.

33. In their submission before the Authority both sets of objectors argued that the GVSC and the GVM were not managed as a whole to encourage their use as a single integrated facility.
34. The objection made by Phillip Hardy asserted that the GVSC and the “Gisborne Market Centre” were quite separate and distinct shopping centres. That letter of objection set out and referred specifically to the s 6 definitions of “large shopping centre”, “shopping centre” and “single management”. Several assertions were made as to the objectors’ understanding of the reasons why management arrangements for each centre are quite separate and distinct. These assertions were not supported by any evidence.
35. The applicants’ objection contained an 8 page submission of which about 2 pages argued that because the two centres were not under single management, the proposed relocation was not to a large shopping centre. While that issue is not the only basis of opposition, it may fairly be regarded as the primary basis upon which that opposition was put.
36. The submission made much of the fact that the application being considered related to the same shopping centre from which these objectors (the applicants in the present proceeding) relocated pursuant to Item 104 of the Schedule in November of 2008. The objectors emphasised that in that prior application, the Authority had determined that the shopping centre was not a large shopping centre. From that base, and by reference to those matters dealt with in the prior application relevant to the issue of single management, the objectors contended that there had been no relevant change since the Authority’s November 2008 decision. In particular it was contended that the two centres still do not encourage their use as a single integrated facility. It was argued that the onus was on the Chemist Warehouse respondents to convince the Authority that change had occurred since the prior decision of the Authority, and that such change was sufficient to warrant a conclusion that the centres were now a large shopping centre. These submissions were not supported by any cogent evidence. The applicant’s objection relied in large part upon extracts from expired leases which had been provided in support of their prior application.
37. At the meeting of 27 November 2009 the members of the Authority decided to recommend to the Secretary that the Chemist Warehouse application be approved. A report to the delegate of the Secretary was provided by the Authority on 27 November 2009 recommending that the application be approved on the basis that the requirements of Item 110 of Schedule 1, Item 201 of Schedule 2, and Items 301 and 302 of Schedule 3 of the Determination were met (‘the decision’)
38. On 8 December 2009 the applicants’ solicitor wrote to the Authority and made a request pursuant to s 13(1) of the ADJR Act seeking that the Authority provide a statement of reasons for the decision to recommend the approval of the Chemist Warehouse application. In response, the Authority provided its statement of reasons dated 4 January 2010.

THE STATEMENT OF REASONS

39. The Authority’s statement of reasons is reasonably brief. The reasons referred to the relevant legislation. In that context the Determination is referred to as “the Rules”. A summary of the application is then set out under the heading “Background”. Paragraph 7 under that heading states:
    7. In order to make a recommendation that the Applicant be approved (pursuant to section 9 of the Rules) or not be approved (pursuant to section 10 of the Rules), the Authority considered the Application against the requirements of the following rules:

(a) Item 110 of Part 1 of Schedule 1;
(b) Item 201 of Schedule 2; and
(c) Items 301 and 302 of Schedule 3.

40. Under a heading “Evidence considered in making the Decision”, the reasons list the documents that were before the Authority and state that the Authority “reviewed” that evidence.
41. The reasons then follow with a heading; “Findings on Material Questions of Fact”. In relation to the requirements of Item 110 of the Schedule, the reasons say:

Schedule 1, Part 1, Item 110, paragraph 1: the proposed premises are in a large shopping centre

18. The Authority considered the evidence before it in relation to the shopping centre and was satisfied that the proposed premises are in a large shopping centre. In particular the Authority considered a statutory declaration dated 18 November 2009 of the Centre manager for Gisborne Village Shopping Centre and Gisborne Village Market (‘the Centre’) that:
    • the gross lettable area of the Centre is 7160.60 metres;
    • the lettable area occupied by the IGA Supermarket plus Liquor is 2519 square metres;
    • there are currently 24 commercial establishments (excluding the supermarket) open and trading with a further 7 tenancies irrevocably committed to formal lease agreements, of which all are scheduled to commence trade by no later than 14 December 2009; and
    • there are 300 car parking spaces at the Centre for public use.
      
19. The Authority found that the proposed premises are in a large shopping centre.
    

Schedule 1, Part 1, Item 110, paragraph 2(a): there are for a shopping centre that contains at least 30, but fewer than 100, commercial establishments – no approved premises in the shopping centre

20. On the basis of the statutory declaration dated 18 November 2009 referred to above, the Authority was satisfied that the shopping centre contains at least 30 commercial establishments.
    
21. The Authority considered the tenants directory annexed to the statutory declaration. The proposed premises are the only premises whose use is listed as pharmacy. The Authority was satisfied that there were no approved premises in the shopping centre.
    

THE APPLICATION TO THIS COURT

42. There is no issue before the Court that the decision is other than a decision to which the ADJR Act applies. As a recommendation of the Authority is a necessary precondition to approval by the Secretary, I am satisfied that the decision is a reviewable decision: s 3(3) ADJR Act and see Ross v Costigan (1982) 59 FLR 184 at 198.
43. The applicants’ challenge to the decision is based upon the ground identified in s 5(1)(e) in combination with s 5(2)(b) of the ADJR Act. The applicants say the decision was an improper exercise of power because the Authority failed to take a relevant consideration into account.
44. The applicants submit that the Authority failed to consider a necessary element of the criteria in Item 110 of the Schedule. In order to have been satisfied that the Item 110 criteria were met, it was incumbent upon the Authority to consider and determine that “the proposed premises are in a large shopping centre”. Given the s 6 definition of “large shopping centre”, the Authority was required to determine that the Chemist Warehouse premises were in a “shopping centre” being “a group of shops and associated facilities that is under single management”. That in turn required, so the applicants contend, that the group of shops and associated facilities were managed as a whole to encourage their use as a single integrated facility, consistent with the s 6 definition of “single management”.
45. The applicants say that in making the decision, the Authority failed to consider, and thus failed to take into account, whether or not the group of shops and associated facilities were managed as a whole to encourage their use as a single integrated facility (‘the single management considerations’).
46. There is no dispute that the single management considerations were relevant considerations. The only question I need to determine is whether these considerations were in fact taken into account. The Court’s function does not involve a review of the merits of the Authority’s decision.
47. The Authority’s statement of reasons does not expressly state that the Authority took into account the single management considerations. Neither the Authority nor any other party sought to put direct evidence before me on whether or not those considerations were taken into account. While the Authority appeared, it chose not to become a protagonist in the proceeding and adopted a position consistent with the High Court’s view in R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, at [35] – [36] that in the absence of exceptional circumstances, a Tribunal’s participation in proceedings in which its decision is challenged should be limited to submissions going to the powers and procedures of the Tribunal.
48. In the absence of direct evidence on whether or not the Authority took into account the single management consideration, the applicants’ case is that by reference to a number of factors, including the statement of reasons, the Court should infer that the single management considerations were not taken into account. The Chemist Warehouse respondents submitted that, by reference to a range of countervailing factors, no such inference could be drawn.

REASONING

49. Section 5(1) of the ADJR Act provides that a person who is aggrieved by a decision to which that Act applies may apply for an order of review in respect of the decision on one or more of a number of grounds including:

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

50. Section 5(2) provides that the reference in paragraph 1(e) to an improper exercise of power shall be construed as including a reference to:

(b) failing to take a relevant consideration into account in the exercise of the power;

51. As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39, the ground appearing in s 5(2)(b) of the ADJR Act is substantially declaratory of the common law. As His Honour there recounted, the decided cases have established a number of propositions including the following:
    • The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which the decision-maker is bound to take into account in making that decision;
    • The factors a decision-maker is bound to consider in making the decision are determined by construction of the statute conferring the discretion;
    • Not every consideration that a decision-maker is bound to take into account will justify the Court setting aside the impugned decision. A factor might be so insignificant that a failure to take it into account could not have materially affected the decision; and
    • The limited role of a court reviewing the exercise of an administrative discretion must constantly be born in mind.
52. There is no issue before me that the Authority was other than bound to take into account the single management considerations. That aspect is clear. What is less clear (and what is essentially the only live issue in the litigation) is whether, as a matter of fact, the single management considerations were taken into account by the Authority when it made its decision.
53. The members of the Authority have not been called to give evidence. As I have said, there is no direct evidence before the Court as to whether or not the single management considerations were taken into account. The Court is left to evaluate whether that finding of fact may be inferred from a range of circumstantial evidence before the Court relevant to that issue. That is the task before me.
54. The Authority’s statement of reasons is central to the challenge brought by the applicants. The Authority’s statement of reasons was not verified by any witness. It was, however, tendered by the applicants without objection. The reasons are relied upon by the applicants as evidence of the Authority’s failure to take the single management considerations into account. The reasons are admissible evidence for such a purpose: Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162 per Davies J at 168 and Hill J at 189.
55. A statement of reasons provided under s 13 of the ADJR Act can provide evidence of the material put before the decision-maker, the way in which that material was dealt with and the reasons for which the decision was made: Taveli at 182 per French J. A properly authenticated statement of reasons provided under s 13 may, absent any contra-indication, sustain the inference that it is an accurate account of the findings and reasons actually relied upon by the decision-maker: Taveli at 179 per French J.
56. There is ample authority for the proposition that a failure to include a matter in a statement of reasons under s 13 may justify a Court inferring as a fact that the matter was not taken into account: ARM Constructions v Commissioner of Taxation (1986) 10 FCR 197 at 205 per Burchett J; approved by a Full Court in Faulkner v Conwell (1989) 21 FCR 41 at 47; Turner v Minister for Immigration (1981) 35 ALR 388 at 392 per Toohey J; in relation to a statement of reasons provided under the Migration Act 1958 (Cth) (‘the Migration Act’) – Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [10] per Gleeson CJ, at [36] and [44] per Gaudron J, at [69] and [75] per McHugh, Gummow and Hayne JJ; in relation to the requirement to provide reasons under the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) see Repatriation Commission v O’Brien [1985] HCA 10; (1985) 155 CLR 422 at 446 per Brennan J.
57. Paragraphs 18 and 19 of the statement of reasons addressed the ultimate question or conclusion which the Authority is required to consider and determine by reference to paragraph 1 of Item 110. The Authority was satisfied that the proposed premises are in a large shopping centre. Of the many constituent or primary facts raised which the Authority was required to take into account and to which earlier reference has been made at paragraph [13], the statement of reasons only directly refers to the shopping centre’s lettable area, the supermarket’s lettable area, the number of commercial establishments and the number of car parking spaces. Those four matters are said by the reasons to be what the Authority considered “in particular”.
58. There is nothing in the reasons which directly addresses the primary facts required to be met in order to satisfy the definition of “single management”. Nor do the reasons directly assert the conclusion that the shopping centre is under single management.
59. It is primarily by reference to these apparent deficiencies in the reasons that the applicants submit that the Court should infer that the single management considerations were not taken into account by the Authority.
60. In my view, these deficiencies do not necessarily lead to the inference that the applicants have asked me to draw. In some cases, it has been found that the omission of direct reference to the relevant factor may support the drawing of such an inference. However, the extent of that support (and thus the weight that I should accord to it in weighing up the competing considerations) depends upon an evaluation of a number of factors to which I now turn.
61. It is important to appreciate that the reasons for decision of a decision-maker are conceptually distinct from the decision itself: Yusuf at [30] per Gaudron J; Civil Aviation Safety Authority v Central Aviation Pty Limited [2009] FCA 49; [2009] 253 ALR 263 at [31] per Perram J. However, reasons for decision may provide the basis for calling into question the correctness of a decision. The failure of reasons to refer to a consideration may reflect the decision-maker’s failure to have taken that consideration into account. That conclusion may more readily be drawn in a case where the decision-maker was duty bound to refer to the consideration in its reasons than in a case where the decision maker was not so bound: Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 per Stephen J at 682 and 685 (with whom Gibbs, Mason and Aitkin JJ agreed).
62. It is necessary therefore to consider the nature and content of the obligation upon the Authority to provide reasons for its decision.
63. The Authority’s obligation to provide reasons was governed by s 13 of the ADJR Act which, relevantly, is in the following terms:

  13 (1)  Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Magistrates Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

13 (2)  Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.

64. The importance of s 13 in the scheme of judicial review under the ADJR Act was emphasised by French J in the following passage from Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162 at 178:

The section has been described as crucial and designed to ensure that the basis upon which a decision is made is able to be seen so that its legality can be tested. The obligation it imposes “demands the furnishing of reasons which make intelligible the true basis of the decision”: ARM Constructions Pty Ltd v DCT (1986) 65 ALR 343 at 349 ; 10 ALN N118 (Burchett J). It is remedial, supplying the deficiency of the common law: Re Australian Institute of Marine and Power Engineers [1986] FCA 443; (1986) 71 ALR 73 at 79 (Gummow J). The section balances requirements that those persons affected by administrative decisions should know why they are made on the one hand and that the administration of the country be carried on effectively without undue intervention by the courts on the other. It is designed to provide persons affected by a decision with sufficient information to decide whether to accept it or pursue the matter further with the administrative process or through the court: Ansett Transport Industries (Operations) Ltd v Secretary, Department of Aviation (1987) 73 ALR 193 at 197 ; 12 ALD 139 (Lockhart J); Re Australian Institute of Marine and Power Engineers, supra, at 79 (Gummow J); Dalton v DCT (NSW) [1985] FCA 298; (1985) 7 FCR 382 at 391–2 (Lockhart J).

65. Section 13 is designed to ensure that the basis upon which a decision is made is able to be seen; it requires a statement of what the administrator found the facts to be, what material the administrator considered in arriving at those findings and the reasons for the ultimate decision; it demands the furnishing of reasons which make intelligible the true basis of the decision: ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197 at 203 per Burchett J. In an often quoted passage from Ansett Transport v Wraith [1983] FCA 179; (1983) 48 ALR 500 at 507 approved by a Full Court in Dornan v Riordan (1990) 24 FCR 564 at 568, Woodward J described the obligation under s 13 in these terms:

The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196 at 206–7 ; 1 ALD 183 at 193–4, serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: “Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.”

This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation.

66. The obligation to provide a statement of reasons under s 13 of the ADJR Act requires the decision-maker to state its findings on those questions of fact which the decision-maker considered to be material to the decision made, and the reasons it had for reaching that decision. The requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker, not upon an objective or external standard of materiality. Those conclusions follow from the High Court’s decision in Yusuf, and in particular in the judgment of McHugh, Gummow and Hayne JJ at [68], and the similarity of wording between s 430 of the Migration Act and s 13 of the ADJR Act. A number of decisions of this Court have applied the reasoning of Yusuf to s 43(2B) of the AAT Act: see Civil Aviation at [29].
67. The reasoning in Yusuf identifies the subject matter required to be dealt with by reasons for decision. It does not suggest that in relation to the reasons required to address that subject matter, there is some lower standard of obligation than that described in the authorities to which I have referred. As McHugh, Gummow and Hayne JJ said at [69] in relation to the obligation to provide reasons:

It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion.

68. The authorities have also expressed some qualifications. It would be wrong for the courts to construe reasons in any overly critical spirit: ARM Constructions at 203-204 per Burchett J. Reasons should not be construed in an over zealous fashion: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummon JJ. The Court ought not be concerned merely with looseness in language or with unhappy phrasing: Oak Valley v ATSIC [1999] FCA 1751; (1999) 98 FCR 1 at [22] per O’Loughlin J. Section 13 does not require that the reasons are set out with the degree of precision or detail which might be appropriate to a judicial decision, but it demands a statement of the real findings and the real reasons: Mees v Kemp [2005] FCAFC 5; (2005) 141 FCR 385 at [55] per French, Merkel and Finkelstein JJ.
69. The Chemist Warehouse respondents accepted that the failure of the reasons for decision to deal with a relevant consideration may lead to the drawing of an inference that the consideration was not taken into account in the making of a decision. However the Chemist Warehouse respondents emphasised that in considering whether or not an inference of that kind might be drawn, it is necessary to take into account all of the material before the decision maker and any other relevant circumstances.
70. As to the applicants’ reliance on the reasons for decision of the Authority, the Chemist Warehouse respondents emphasised that there is a difference between the process of reaching a decision and the recording of that decision. They sought to defend the reasons for decision. It was argued that there was no basis for the proposition that because an objector raises an issue the reasons for decision need to deal with it. Whereas the Chemist Warehouse respondents conceded that whether the shopping centre was under single management was a question of fact the Authority was bound to consider, they nevertheless argued that the reasons for decision were adequate. In essence their contention is that it was sufficient for the Authority’s reasons to include a finding on the ultimate fact required by paragraph 1 of Item 110 – that the proposed premises were in a large shopping centre. As Mr Burley put it, the reasons “hit the big target right in the middle”. The reasons did not need to be exhaustive and did not need to deal with factual findings raised by the “sub-definitions” upon which the definition of large shopping centre depended.
71. That response raises the question of whether it is sufficient for reasons to deal with an ultimate fact, without reference, or without adequate reference to the primary facts that need to be considered on the way to the ultimate factual conclusion.
72. A Tribunal’s obligation to state the reasons for its determination is not satisfactorily discharged by doing no more than stating the conclusions as to the ultimate facts it has reached upon factors to which it is statutorily required to have regard: Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 at 684-686 per Stephen J (with whom Gibbs, Mason and Aickin JJ agreed). In Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465, Wilcox J applied what he called the homespun test of Woodward J in Ansett Transport. His Honour noted that what is required is that the decision-maker articulate the reasons for the decision, including by providing an explanation or particulars of the conclusions reached: at [481]-[483]. In Oak Valley at [26], O’Loughlin J held that it was insufficient for a decision maker simply to set out the conclusions which had been reached without identifying the findings of fact that it made during the course of those deliberations.
73. In Federal Commissioner of Taxation v Cainero (1988) 15 ALD 368, Foster J analysed the obligation under s 43(2B) of the AAT Act. The terms of that provision are similar to those of s 13 of the ADJR Act. In relation to that obligation and in particular, as to how that obligation related to the need to address primary facts, Foster J at 370 said:

It could not be suggested that the Tribunal was under any obligation to isolate in its reasons every issue of fact and record a specific finding in respect of each of them. It is obviously sufficient, in light of the cases referred to above, and as a matter of common sense, that a sufficient compliance with the requirement of considering all issues of fact and giving adequate reasons occurs when the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored.

74. The requirements of s 43(2B) were more recently dealt with by Hill, Stone and Allsop JJ in Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259, where at [46] the Court accepted that it was necessary to make findings and give reasons in respect of substantial issues on which the case turned.
75. While it is not incumbent upon a judge to deal with every argument or issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue: Hunter v Transport Accident Commission [2005] VSCA 1; (2005) 43 MVR 130 per Nettle JA at [21]; referred to with approval by Tamberlin, Sundberg and Besanko JJ in Carlisle Homes Pty Ltd v Barrett Property Group Pty Limited [2009] FCAFC 31 at [45].
76. In my view, s 13 of the ADJR Act requires the provision of reasons which do more than simply identify the decision-maker’s conclusions on ultimate facts. The obligation requires some explanation of the basis upon which the decision-maker has arrived at the ultimate fact. That may not require the reasons to deal with every primary fact necessary for consideration in arriving at the ultimate factual conclusion. However, significant areas of primary fact should ordinarily be addressed.
77. The test of significance needs to take into account both the need for persons affected by the decision to know the basis upon which the decision was made and the need for efficient administration. That approach is in keeping with what the authorities have identified as the balance which s 13 is designed to achieve.
78. A common sense approach is required. Conclusions as to primary facts which were not the subject of controversy before the decision-maker are unlikely to require explanation. Persons affected will readily understand why those conclusions were arrived at. Conclusions as to significant facts in dispute are likely to require explanation, if persons affected by the decision are to be given an understanding of the basis for the decision. So much was recognised by Woodward J in Ansett when His Honour emphasised that it was especially necessary for a decision-maker to provide reasons in relation to facts that were in dispute.
79. As the material before the Authority demonstrates, whether or not the GVSC and GVM were managed as a whole to encourage their use as a single integrated facility was a live and contested issue. This was the primary issue upon which the objectors based their opposition. The resolution of that issue was significant to the conclusion reached by the Authority that the proposed premises were in a large shopping centre.
80. Without some explanation of how the Authority resolved that issue, the objectors had no capacity to know how it was that the Authority came to the ultimate fact that it did. The need for efficient administration would hardly have been compromised by the Authority providing that understanding.
81. In my view, s 13 of the ADJR Act did oblige the Authority to deal in its statement of reasons with the issue raised by the single management considerations and, by reference to that issue, identify its reasoning for the finding that the proposed premises were in a large shopping centre.
82. It was required to do that even if it considered that the only material question of fact was the ultimate question of whether or not the shops and facilities constituted a large shopping centre. Beyond the obligation to set out findings on material questions of fact, s 13(1) requires reference to the evidence or other material on which material findings were based and the giving of the reasons for the decision. By reference to the evidence it relied upon, the Authority should have provided some explanation of the basis upon which it was satisfied as to the ultimate fact, with particular emphasise on the significant issues which were raised.
83. As is apparent from the statement of reasons, that was not done. Paragraph 18 of the statement sets out the finding that the proposed premises are in a large shopping centre. It refers to the evidence which supports that finding but only as to evidence of some primary facts (lettable area, size of the supermarket, number of commercial establishments and number of carparking spaces) and not as to others – including the single management considerations.
84. Whilst that failure is a factor in support of the Court drawing an inference that the single management considerations were not taken into account, it is not determinative of that issue. There ought be no assumption made that the failure to have included a matter in a statement of reasons when obliged to do so leads to the conclusion that there was a failure to take that matter into consideration in the making of the decision itself. Fisher J seems to have applied such an assumption in Collins v Repatriation Commission [1980] FCA 105; (1980) 32 ALR 581 at 595 and arguably His Honour took a similar approach in Sullivan v Department of Transport (1978) 20 ALR 323 at 353. However the adoption of any such assumption is inconsistent with the High Court’s approach in Kentucky Fried Chicken, the approach of Brennan J in O’Brien and also of the approach taken in Yusuf. Whilst the decisions in each of those cases contemplate that a failure to comply with the requirements of a statute in relation to the provision of reasons may suggest that a relevant consideration was not taken into account in the making of the decision, it is not suggested that that is necessarily so, as would be the case if an assumption is to be applied: see Kentucky Fried Chicken at 680 per Barwick CJ, 682 per Stephen J (with whom Gibbs, Mason and Aickin JJ agreed; O’Brien at 446 per Brennan J; and Yusuf at [68] per McHugh, Gummow and Hayne JJ.
85. Delivering the decision of a Full Court in Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620, Fox J at 621 said that “it is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention”.
86. In Dodds v Comcare Australia (1993) 31 ALD 690 at 690 Burchett J said:

So far as the argument is based on the proposition that the tribunal failed to take relevant matters into account, the court should not ignore the consideration that a matter which has been passed over in silence in the tribunal's reasons is not therefore to be assumed to have been overlooked. Of course, in a particular case it may be inferred that the matter was overlooked, or perhaps that it was thought to be unimportant. But a court or tribunal may omit to mention something it has nevertheless had well in mind in reaching its decision. This proposition was emphatically asserted by Lord Simonds in Watt or Thomas v Thomas [1947] AC 484 at 492 in a passage cited in Westpac Banking Corporation v Spice at 51,398. Compare Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 at 351, and see Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621, per Fox J delivering the reasons of the court (Fox, McGregor and Morling JJ).

87. As Burchett J said in ARM Constructions at 205, whether the inference will be drawn in a particular case will depend upon all the circumstances. That caution was emphasised by Wilcox J in the following passage from Our Town FM Pty Ltd v ABT [1987] FCA 301; (1987) 16 FCR 465 at 485:

The principle referred to in Sullivan and Collins relates only to the inference which may, in appropriate circumstances, be drawn. It is not suggested — and it could not logically be suggested — that the omission of a matter from reasons necessarily means that the tribunal failed to consider that matter. The question must be determined in the light of the whole of the circumstances.

88. As Wilcox J said, as a matter of logic, it does not follow that inadequate reasons are necessarily the result of an inadequate decision. A decision accompanied by perfectly adequate reasons may be riddled with legal errors just as a decision which is accompanied by inadequate reasons may be legally impeccable: Civil Aviation Safety Authority at [33] per Perram J. The fact that the legal requirements attending the production of reasons were not followed does not necessarily mean that the legal requirements attending the making of the decision were not followed.
89. Therein lies the dilemma for the applicants in this case. The relevant considerations could have been overlooked either when the decision was made or when the decision was committed to writing: compare Dennis Wilcox v FCT (1988) 79 ALR 267 at 276-277 per Jenkinson J (with whom Woodward and Foster JJ agreed). It may be that the failure to refer to the single management considerations in the statement of reasons is a failure in the process of the provision of reasons and not a failure in the decision-making process itself. On what basis am I to infer that the failure stems from the decision-making process itself? I agree with the statement of French J in Taveli at 179 that a properly authenticated statement of reasons provided under s 13 may, absent any contra-indication, sustain the inference that it is an accurate account of the reasons actually relied upon by the decision-maker. However, for the reasons which follow there are contra-indications apparent in this case.
90. In Powell v Evreniades (1989) 21 FCR 252, where it was contended that the failure of reasons to deal with constituent facts to an ultimate fact demonstrated a failure to take into account relevant considerations, Hill J at 265 said:

Although it may be regrettable, statements under s 13 are generally prepared by administrators and not lawyers and are often not prepared with the care or precision which the policy of the section contemplates. It clearly would not follow merely because a statement did not set out the findings on a particular material question of fact that no such finding was made. Indeed, it may be implicit from what is said that such a finding was made or in a particular case evidence might be given in proceedings for review which make it clear that the particular finding was made, notwithstanding that it was not referred to in the s 13 statement.

91. As His Honour noted, to arrive properly at an ultimate conclusion of fact requires that each of the constituent facts be addressed. The omission of findings in relation to constituent facts did not necessarily mean that the ultimate conclusion of fact was arrived at without consideration of those constituent elements. It may be implicit from the expression of satisfaction as to the ultimate fact that consideration was given to the primary or constituent facts necessary to reach that ultimate conclusion. That may not be so in every case, but in my view, the nature of the exercise required of the Authority in this case supports the contention that the constituent facts were considered when the Authority determined that it was satisfied that the proposed relocation was to a large shopping centre.
92. That exercise involved satisfaction as to whether or not there was a large shopping centre. The Schedule identifies the constituent elements of a large shopping centre in a very precise and ordered fashion. Properly done, the exercise involves stepping through a number of definitions and ticking off each of the required elements. This was not an exercise, as is often the case, where a decision-maker is left to identify what considerations are relevant to the ultimate conclusion required. The exercise required of the Authority was in no respect abstract or obscure and was largely formulaic. In that context, it is more likely that the exercise was properly undertaken.
93. That is especially so given the expertise of the Authority and its regular dealings with the Schedule and its requirements. As the evidence before me shows, the Authority meets each month and considers between and 30 and 40 applications in relation to the Schedule at each meeting. Of the 37 applications considered at the meeting of 27 November 2009, 7 were applications for relocation to a large shopping centre. Of the 14 different kinds of application which are contemplated by the Schedule, 4 kinds of application refer to the phrase large shopping centre and require the application of the definition and sub-definitions that are relevant to it. It can be seen therefore that dealing with and applying the concept of large shopping centre as defined by the Schedule is part of the regular and routine work of the Authority.
94. Given its familiarity with the phrase, it is likely that the Authority well understood the nature of the constituent elements of the term large shopping centre and also understood the need to step through each element in order to arrive at the ultimate conclusion. The use by the Authority of the header sheet (a document which summarises the criteria required by each different kind of application and which is used to help ensure that the relevant criterion is considered) is also of some significance. I note in that context that the header sheet specifically refers to the need to consider whether the group of shops and associated facilities are under single management and sets out the relevant s 6 definitions.
95. Another factor which provides a contra-indication of the kind referred to by French J is the fact that the submissions before the Authority prominently dealt with the issue of single management. That issue was extensively referred to by both objectors and is fairly to be regarded as the primary basis for the objections. The fact that an issue was prominent in a decision-maker’s deliberations tends to support an inference that it was considered rather than not. The attention given to the issue suggests that it is improbable that in reaching its decision the Authority either wilfully ignored or overlooked it: see Kentucky Fried Chicken at page 686 per Stephen J (with whom Gibbs, Mason and Aitken JJ agreed).
96. The applicants contended that the prominence of the single management considerations in the submissions before the Authority needs to be understood in the context that the meeting of 27 November was a busy meeting, and that much of the material relied upon was first put before the Authority at that meeting. There is no evidence before me as to time spent by the Authority on this particular application, nor the opportunity provided to the members of the Authority to read and digest the material provided at the meeting. In the absence of such evidence I could only speculate, but decline to do so.
97. The Chemist Warehouse respondents also relied upon the following matters dealt with in the statement of reasons as evidence supporting the contention that the single management considerations were taken into account in the making of the decision:
    • The paragraph 11 statement to the effect that the Authority reviewed all of the material put before it. A consideration for which support can be found in Kentucky Fried Chicken at 686; Re MIMIA; Ex Parte Palme [2003] HCA 56; (2003) 216 CLR 212 at 224; and Traill v McRae [2002] FCAFC 235 at [181].
    • The non-exhaustive character of the wording of paragraph 18, in the sense that the words “in particular” are indicating that particular matters have been listed in the context of other matters considered but not listed;
    • The finding in paragraph 18 of 30 commercial establishments – a finding which is necessarily reliant upon the commercial establishments in both the GVSC and the GVM being taken into account;
    • The additional statement in paragraph 19 that the proposed premises are a large shopping centre; and
    • The statement in paragraph 28 that “the Authority found that the Application met all the requirements of Items 110, 201, 301 and 302”.
98. I have given some weight to the first 3 matters relied on, but not the others.
99. Finally, the applicants also contended that there was an absence of evidence upon which the Authority could have come to a view that the single management considerations were satisfied, and that absence supports the contention that there was no consideration of the matter. There is a danger involved in dealing with this submission because it invites a merits review of that issue. Whereas I accept that there was no direct evidence that the GVSC and GVM were managed as a whole to encourage their use as a single integrated facility, there was the following evidence before the Authority to which I have earlier referred:
    • The single ownership of the GVSC and GVM;
    • The single management of the GVSC and GVM;

• The statements in both the Minsky and Donovan Declarations that the Centre was under single management and the evidence of the management responsibilities of the manager;
• The site plan and photos of the Block showing the proximity and juxtaposition of the two groups of shops;
• The shared carparking facilities; and
• The photographs of “Gisborne Village” signage on the Block.

100. It is thus wrong to say there was no evidence from which a finding could have been made that the single management considerations were satisfied. The Authority may have inferred from the evidence I have identified that the single management requirement was satisfied. It is not my task to determine whether such an inference was right or wrong. However, the fact that this evidence was available substantially diminishes the force of the applicants’ contention.
101. Having weighed all of the competing considerations, I am unable to draw the inference for which the applicants contend. As I have noted, there is no other ground of challenge before me beyond the ground of failure to take into account the single management considerations. Accordingly, I made the order dismissing the application.
102. I also made an order which seeks submissions from the parties on the question of costs. Given the observations I have made about the inadequacy of the statement of reasons, it is appropriate that I receive submissions as to whether or not that inadequacy has a bearing upon the question of costs. I refer in this regard to Faulkner v Conwell (1989) 21 FCR at 43 per Woodward J and at 47 per Jenkinson J.
     

I certify that the preceding one
hundred and two (102) numbered
paragraphs are a true copy of the
Reasons for Judgment herein of the
Honourable Justice Bromberg.

Associate:

Dated: 5 March 2010