CATCHWORDS SOCIAL WELFARE - National Health Legislation - Pharmaceutical Benefits Scheme -approval of pharmacists - application to relocate premises - no obligation to notify other approved pharmacists ADMINISTRATIVE LAW - judicial review - competency of application - competitors challenging approval of another pharmacist Administrative Decisions (Judicial Review) Act 1977, ss 3(4)(a), 5(1) National Health Act 1953, s 90 Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589 appld JOHN ANDREW LOVERIDGE and PAMELA MAY LOVERIDGE v PHARMACY RESTRUCTURING AUTHORITY and ORS No. NG 840 of 1994 Coram: Whitlam J Place: Sydney Date: 23 August 1995 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 840 of 1994 ) GENERAL DIVISION ) JOHN ANDREW LOVERIDGE and PAMELA MAY LOVERIDGE Applicants PHARMACY RESTRUCTURING AUTHORITY First Respondent SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES Second Respondent WALTER VINCENT HILL Third Respondent PATRICIA LILLY TEREBUH Fourth Respondent Coram: Whitlam J Place: Sydney Date: 23 August 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 840 of 1994 ) GENERAL DIVISION ) JOHN ANDREW LOVERIDGE and PAMELA MAY LOVERIDGE Applicants PHARMACY RESTRUCTURING AUTHORITY First Respondent SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES Second Respondent WALTER VINCENT HILL Third Respondent PATRICIA LILLY TEREBUH Fourth Respondent Coram: Whitlam J Place: Sydney Date: 23 August 1995 REASONS FOR JUDGMENT Introduction The applicants, John and Pam Loveridge, are husband and wife. They own a pharmacy business in a shopping complex called Penrith Plaza. Mr Loveridge is an "approved pharmacist" within the meaning of s 84(1) of the National Health Act 1953 ("the Act"). From about 1 March 1992 until November 1994 the applicants carried on the only pharmacy business in the complex. The complex was expanded at the end of 1993, and in 1994 a medical centre was opened on the side of the complex facing Riley Street, Penrith. In September 1994 the third respondent, Terry Hill, applied under s 90 of the Act for approval in respect of premises at 100 Henry Street, Penrith with a view to relocating from those premises to premises at the new medical centre in Penrith Plaza. Under the Act the application for relocation from 100 Henry Street to the medical centre had to be considered by the first respondent, the Pharmacy Restructuring Authority ("the Authority), which then had to recommend whether or not Mr Hill should be approved under s 90. The Authority's recommendation had to comply with guidelines determined by the Minister under the Act. In this case the relevant guideline provided: "3.(d)... approval of a pharmacist in respect of particular premises shall be recommended where those premises are located not more than 500 metres by normal access routes from other premises in respect of which that pharmacist is already approved under s 90 of the Act and from which the pharmacist proposes to cease supplying pharmaceutical benefits." On 22 September 1994 the Authority recommended that the application be approved, and on 1 November 1994 a delegate of the second respondent, the Secretary to the Department of Human Services and Health ("the Secretary"), granted Mr Hill's application in respect of premises described as "Tenancy No. 54 Penrith Plaza Medical Centre, Penrith Plaza, Riley Street, Penrith, NSW, 2750". (The Authority ceased to exist on 31 March 1995 and has been replaced by a new body.) Subsequently too, there were changes in ownership of the new pharmacy, and the fourth respondent, Patricia Terebuh, is now approved in respect of the same premises. The applicants seek an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") in respect of the Authority's recommendation of 22 September 1994 and the Secretary's decision of 1 November 1994. The respondents object to the competency of the application. Standing of the Applicants The statutory scheme and the meaning of the guideline were explained by the Full Court in Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589. In the course of rejecting a submission that the Authority had any obligation to notify or hear pharmacists (who were not parties to an application under s 90 of the Act) "merely because an approval might commercially damage them", the Court said (at 597): "The relevant provisions [of Part VII of the Act] are not concerned with minimising competition in the pharmaceutical industry but with reducing the Commonwealth's financial burden in providing pharmaceutical benefits while maintaining an acceptable level of community service." Accordingly, it is said by the respondents, the applicants' economic interest as competitors of the new pharmacy in the medical centre is beyond the scope of the interests protected by the Act. It is submitted that they are not "aggrieved" by the challenged decisions within the meaning of the ADJR Act. The locus classicus on standing under the ADJR Act remains what Ellicott J said in Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437-438: "The words "a person who is aggrieved" should not in my view be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct. It may affect him or her in the conduct of a business ..." Lockhart J recently referred to this statement with approval in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 at 251. His Honour also said (at 252): "In order that an applicant may show that he is a person "aggrieved", the element of "grievance" must be special to the applicant. He must suffer more greatly or a different way than other members of the community. It is to be noted that the definition of "a person aggrieved" by a decision is inclusive of a person whose interests are adversely affected by the decision. ... It is not enough that the person establishes the satisfaction of righting a wrong or upholding a principle or winning a battle if the action succeeds or will suffer some disadvantage other than a mere sense of loss or grievance or a debt for costs if the action fails: ... But the applicant must establish that, if successful in the proceeding, he will gain a benefit or advantage greater than the benefit or advantage thereby conferred upon ordinary members of the public; or, in the alternative, that success in the proceeding would relieve the applicant of a disadvantage or detriment to which he would otherwise have been subject to an extent greater than ordinary members of the public: ..." In the same case Gummow J said (at 269): "Section 5(1) of the ADJR Act operates in an ambulatory fashion over a wide area of federal law. Questions as to whether a particular applicant is "aggrieved" within the meaning of that provision arise in the context provided by the "enactment" under which the administrative "decision" in issue was made. The nature of the grievance and the justiciability of the complaint by the applicant concerning it will appear first by identifying the decision giving rise to the grievance and then by considering the enactment under which it was made. The use by the parliament of the term "aggrieved" is significant in several respects. First, it suggests that the question of standing is not answered simply by identification of a person who is an effective and faithful representative of the public interest in due administration of the law concerned. Secondly, it directs attention to what in federal administrative law are the constitutional limitations upon any statutory system which expands the concept of standing in a court exercising federal jurisdiction beyond the ambit of a "matter" (in Australia) or "case or controversy" (in the United States): ... The court has jurisdiction conferred when there is a "person aggrieved" by a "decision" which is "of an administrative character" and made "under an enactment". These matters are indicated by the terms of s 5(1), when read with the definitions in s 3. A "decision" includes a refusal to revoke an approval, consent or permission. The "enactment" must, to put it broadly, be a statute or instrument made thereunder. The reference in s 5(1) to a person who is "aggrieved" includes (but, of course, is not limited to) a reference to one whose "interests are adversely affected" by the decision: s 3(4)(a). Hence the importance, in assessing whether the applicant is "aggrieved" and in ascertaining the content of the terms "interests", "affect" and "adversely", of the nature, scope and purpose of the particular enactment under which the decision has been made. In a sense, the position is analogous to that established by the precept that the ambit of an administrative discretion, otherwise unconfined, is to be determined with regard to the subject matter, scope and purpose of the statute by which it is conferred: R v Australian Broadcasting Tribunal: Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49." Lockhart J (at 254-255) also emphasized the importance of the objects of the Act under which the impugned decision is made. It is also useful to recall the difference between administrative review and judicial review referred to by Davies J in Alphafarm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 where his Honour said (at 260): "The term "aggrieved", when used in the context of judicial review, may have a different connotation, for the object of judicial review is to ensure that the law is observed." Also in Alphafarm Gummow J said (at 272): "... in my view, there is no "general principle" that a decision under an enactment which favours one corporation cannot relevantly affect the interests of a competitor: cf Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377 at 382-384." Here the applicants' complaint touches directly on the application of the guidelines made under the Act. The approval of Mr Hill must affect them in the conduct of their business. They have been subjected to competition in the shopping complex, where formerly there was none. The Authority's recommendation and the Secretary's decision thus result in a real grievance. Further, if they are able successfully to impugn those decisions, they may well gain something of significance. The subsequent approvals in respect of the same premises may be able to be upset, and Mr and Mrs Loveridge could then be restored to their monopoly position in the complex. Consistently with the above statements of principle, to my mind, they are persons "aggrieved" by the relevant decisions and entitled to institute this proceeding. Counsel for the third and fourth respondents submitted that s 95 of the Act provided sufficient remedy for the applicants if they wish to allege an impropriety affecting the approval of the medical centre premises. I do not accept this submission. Section 95 is, relevantly for present purposes, concerned with conduct of an approved pharmacist that is an abuse of his or her approval. It is not concerned with the conduct of the Authority or the Secretary. Grounds of the Application Counsel for the applicants made the formal submission that the Authority's recommendation breached the rules of natural justice for the reasons given by Davies J in Martin v Pharmacy Restructuring Authority (1994) 34 ALD 534. This submission cannot succeed in the light of the Full Court decision in Martin, supra, which was handed down two days before this proceeding was begun. The applicants also contested the Authority's finding of fact that the relocation was less than 500 metres. They tendered Mr Loveridge's evidence of measurements which he made on 30 October 1994 of the distance between 100 Henry Street and the medical centre, together with reports of surveys conducted on 25 and 30 November 1994 by Matthew Freeburn, registered surveyor. This evidence was not, of course, before the Authority or the Secretary, and it was not admitted. There was a certified surveyor's report before the Authority to the effect that the distance to be relocated was 490 metres. It could not, therefore, be suggested that there was not evidence before the Authority upon which it could base its decision: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 221. Further, s 5(1)(h) and (3)(b) of the ADJR Act do not permit evidence to be adduced to contradict the material which was before the decision-maker: Szelagowicz v Stocker (1994) 35 ALD 16 at 22. Finally, the applicants relied on the Authority's Newsletter 8 issued July 1994. This document described information to be provided with applications under the Act. In relation to relocation under paragraph 3.(d) of the guidelines, it stated: "The 500m is to be measured by the shortest distance from the door of the existing premises, to the door of the proposed site by normal access. In the case of a shopping centre this means from the actual door of the pharmacy through the most convenient public exit of the Centre." Counsel for the applicants did not link this alleged requirement to a specific ground under s 5(1) of the ADJR Act, and none was indicated in the application. However, it was submitted that, since this case involved a shopping centre, the Authority had erred in failing to express the final distance "from the door of the existing premises" to the "actual door of the pharmacy". However, the newsletter does not contain any legislative prescription. The Act obliged the Authority to comply with the guidelines. They simply required that the Authority consider, as it did, whether the new premises were located not more than 500 metres "by normal access routes" from the old premises. Order The application will be dismissed with costs. I certify that this and the preceding seven pages are a true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam Associate: Date: 23 August 1995 Counsel for the applicants: Allan Hughes Solicitors for the applicants: Astley Thompson & Valtas Counsel for the second respondent: S.J. Gageler Solicitor for the second respondent: Australian Government Solicitor Counsel for the third and fourth respondents: M.B. Smith Solicitors for the third and fourth respondents: Tress Cocks & Maddox Date of hearing: 17 August 1995