FEDERAL COURT OF AUSTRALIA Kastrinakis v Australian Community Pharmacy Authority [2013] FCA 995 Citation: Kastrinakis v Australian Community Pharmacy Authority [2013] FCA 995 Parties: STEVEN KASTRINAKIS & ORS v AUSTRALIAN COMMUNITY PHARMACY AUTHORITY & ORS File number: VID 111 of 2013 Judge: DAVIES J Date of judgment: 2 October 2013 Catchwords: ADMINISTRATIVE LAW – judicial review – approval of pharmacists to supply pharmaceutical benefits from particular premises - National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth) – requirement that premises be 1.5 kilometres from the nearest approved premises – whether minimum distance requirement a jurisdictional fact – whether "no evidence" to justify decision to approve – whether the decision maker took into account an irrelevant consideration – whether the decision maker failed to take into account a relevant consideration – whether an improper exercise of power – application granted. PRACTICE AND PROCEDURE – whether particular applicants have standing to bring claim – whether persons who are aggrieved – Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 followed. Legislation: Administrative Decisions (Judicial Review) Act 1997 (Cth), s 5 National Health Act 1953 (Cth), ss 90, 99K National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth) Cases cited: Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 Karalis v Australian Community Pharmacy (1998) 90 FCR 473 Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 Cabal v Attorney-General of the Commonwealth (2001) 113 FCR 154 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 Deloitte Touche Tohmatsu (a firm) v Deputy Commissioner of Taxation [1998] FCA 1439 Date of hearing: 24 July 2013 Date of last submissions: 24 July 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 37 Counsel for the Applicants: S R Senathirajah Solicitor for the Applicants: Maddocks Lawyers Counsel for the First and Second Respondents: D O'Donovan Solicitor for the First and Second Respondents: Australian Government Solicitor Counsel for the Third and Fourth Respondents: M Hoyne Solicitor for the Third and Fourth Respondents: Best Hooper IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 111 of 2013 BETWEEN: STEVEN KASTRINAKIS & ORS Applicants AND: AUSTRALIAN COMMUNITY PHARMACY AUTHORITY & ORS Respondents JUDGE: DAVIES J DATE OF ORDER: 2 OCTOBER 2013 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application is granted. 2. The decision of the first respondent to recommend that the second respondent grant the third and fourth respondents approval under s 90(1) of the National Health Act 1953 (Cth) to supply pharmaceutical benefits at Shop 8, Eastwood Village Shopping Centre, Bairnsdale in the State of Victoria ("the premises"), is set aside as at the date of this order. 3. The decision of the second respondent made pursuant to s 90 of the National Health Act 1953 (Cth) to grant approval to the third and fourth respondents to supply pharmaceutical benefits at the premises is set aside as at the date of this order. 4. The third and fourth respondent's application for approval in respect of the premises is referred back to the first and second respondents respectively for consideration in accordance with the law. 5. There is no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 111 of 2013 BETWEEN: STEVEN KASTRINAKIS & ORS Applicant AND: AUSTRALIAN COMMUNITY PHARMACY AUTHORITY & ORS Respondents JUDGE: DAVIES J DATE: 2 October 2013 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicants seek judicial review of: the decision of the first respondent ("the Authority") under s 99K(1) of the National Health Act 1953 (Cth) ("National Health Act") to recommend that the second respondent ("the Secretary") grant the third and fourth respondents approval under s 90(1) of the National Health Act to supply pharmaceutical benefits at a new pharmacy situated at Shop 8, Eastwood Village Shopping Centre, Bairnsdale ("the proposed premises"); and the decision of the Secretary made pursuant to s 90 of the National Health Act to grant that approval ("the decisions"). 2 The decisions were made upon satisfaction that the third and fourth respondents had met all the requirements specified in the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth) ("the Rules"). Those requirements relevantly included the requirement for the proposed premises to be at least 1.5 kilometres by straight line from the nearest approved premises: Sch 1, Part 2, Item 130 of the Rules. The Authority and the Secretary both accepted that a Google Earth map provided by the third and fourth respondents showed that this requirement was met. That map showed that the straight line distance between a location designated as 66 Howitt Avenue, Eastwood and the nearest approved premises at 46-56 Nicholson Street, Bairnsdale is approximately 1,807 metres. 3 The first and second applicants are the proprietors of the pharmacy at 46-56 Nicholson Street, Bairnsdale and the third to seventh applicants are the proprietors of another nearby pharmacy located at 190-192 Main Street, Bairnsdale. The applicants have claimed that the distance between pharmacies should have been measured from 30 Howitt Avenue Eastwood, not 66 Howitt Avenue, Eastwood and, on that basis, that the minimum distance requirement was not met. A surveyor's report they obtained shows that the straight line distance between 30 Howitt Avenue and the nearest approved premises is 1453.3 metres, which is less than the prescribed minimum 1.5 kilometres. This surveyor's report was not before the Authority or the Secretary when they made their decisions. 4 It was not in dispute that the actual location of the proposed premises is at 30 Howitt Ave on the corner of Evergreen Way and Howitt Avenue. It was explained by the applicants in evidence that 66 Howitt Ave was used as the reference point in the application for approval because that was the address stated on the planning permit that authorised the development of the land on which the shopping centre complex was built. 5 The applicants rely upon several of the grounds of review specified in s 5 of the Administrative Decisions (Judicial Review) Act 1997 (Cth) ("the ADJR Act"), alleging: that the decisions should be set aside because they were not authorised by the National Health Act or by the Rules: s 5(1)(d); that there was no jurisdiction to make the decisions: s 5(1)(c); that there was "no evidence" to justify the decisions: s 5(1)(h); that the making of the decisions was an improper exercise of power: s 5(1)(e); and that procedures that were required by law to be observed in connection of the making of the decisions were not observed: s 5(1)(b). 6 It is necessary to say something more about the facts and governing legislation before dealing with the grounds of review. factUAL CONTEXT 7 On 17 September 2012, the third and fourth respondents submitted an application to the Department of Human Services, Medicare, for approval to supply pharmaceutical benefits at a premises designated as: Shop 8, Eastwood Village Shopping Centre, cnr Evergreen Way and Howitt Avenue, Eastwood 3875. 8 Enclosed with the application was a Google Earth map which was described as showing the measurement from: The proposed premises at Shop 8, Eastwood Village Shopping Centre to [the nearest approved premises] at 46 Nicholson Street, Bairnsdale. The Google Earth map designated 66 Howitt Avenue as the address for Shop 8, Eastwood Village and the measurement showed a distance of 1,807 metres from that address to the nearest approved premises. 9 On 24 September 2012, the Authority wrote to three nearby pharmacists, including the applicants, seeking comments on whether the application met the relevant requirements of the Rules. The Authority received comments and supporting documents from the three pharmacists, including the applicants, on 11 and 12 October 2012. No objections were raised that the minimum distance requirement was not met. 10 The Authority considered the application at its meeting on 26 October 2012 and made the recommendation that the third and fourth respondents should be approved under s 90 of the National Health Act to supply pharmaceutical benefits at premises identified as: Shop 8, Eastwood Village Shopping Centre, Cnr Evergreen Way & Howitt Avenue, Eastwood. The Authority was satisfied on the basis of the Google Earth map that Shop 8, Eastwood Village Shopping Centre was at least 1.5 kilometres by straight line from the nearest approved premises. The Secretary agreed with the Authority's recommendation, relying on the same Google Earth map. The legislative scheme 11 The supply of Commonwealth-subsidised medications ("pharmaceutical benefits") through the Pharmaceutical Benefits Scheme is regulated by Part VII of the National Health Act. A pharmacist must have approval from the Secretary to supply pharmaceutical benefits at particular premises. To obtain approval the pharmacist makes application to the Secretary, who must then refer the application to the Authority: National Health Act, s 90(3A). The Authority's function is to consider applications for approval to supply and to make recommendations to the Secretary in respect of whether approval should be granted and, if so, the conditions to which the approval should be subject: National Health Act, s 99K. The Secretary can only grant approval if the Authority recommends the grant of approval, though the Secretary may refuse to grant approval even if the grant has been recommended by the Authority: National Health Act, s 90(3B). 12 In making its recommendation the Authority must comply with the Rules: National Health Act, s 99K(2). The Rules contain the pharmacy location requirements that must be satisfied for the Authority to recommend to the Secretary that approval should be granted, including the requirement contained in Item 130 of Part 2 to Sch 1 ("the minimum distance requirement") that: The proposed premises [must be] at least 1.5 km, in a straight line, from the nearest approved premises. 13 Rule 8(1) describes how a straight line distance is to be measured between two premises: … a reference to the distance between 2 premises in a straight line is a reference to the distance, measured in a straight line, from the centre, at ground level, of the public entrance of the first premises to the centre, at ground level, of the public entrance of the second premises. 14 The Authority must recommend approval if all the applicable requirements are met: r 10; and must recommend that the applicant not be approved if an applicable requirement is not met: r 11. GROUNDS 1 AND 2 – NO AUTHORITY AND NO JURISDICTION to make the decisions 15 These grounds can be considered together as they were argued on the same basis. 16 It was contended that the minimum distance requirement prescribes an objective jurisdictional fact, which makes the exercise of the powers of the Authority and the Secretary to grant approval contingent on the actual fact of a minimum 1.5 kilometre distance between the proposed premises and the nearest approved pharmacy. It was further submitted that the applicants have shown by the unchallenged surveyor's report that the actual distance is less than 1.5 kilometres. 17 No cases have considered the minimum distance requirement but there is support for this contention having regard to the objective language of the requirement read in conjunction with rr 10 and 11 which are mandatory in terms. However, the third and fourth respondents argued that I should find that the minimum distance requirement is an evaluative fact, involving an exercise of judgment about whether the requirement is met. The third and fourth respondents relied on Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 per Branson J and Karalis v Australian Community Pharmacy (1998) 90 FCR 473 ("Karalis") per Goldberg J in support of this submission. 18 Those cases concerned a different requirement that was also couched in objective terms. The Rules (as they were at the time) required a maximum distance between the old and new premises "measured door to door by the shortest lawful access route" if an applicant had approval under s 90 of the National Health Act in respect of premises and was relocating. The Courts in both cases construed the requirement as involving an exercise of judgment and not simply the determination of an objective fact. In both cases, the Courts expressly followed the reasoning of the dissenting judgment of Black CJ in Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 465-7 (which the High Court upheld in effect in Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297). In issue in Australian Heritage Commission v Mount Isa Mines Ltd was whether the eligibility of a place for inclusion of the heritage register was a jurisdictional fact. Black CJ stated that: In considering the present question it is appropriate to examine first the nature of the task committed to the Commission under the Act. Reference to the definition of the national estate in s 4 of the Act reveals that the task of determining whether a place is part of the national estate may be a difficult and complicated one, involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially very wide range of matters. Questions of science, history and aesthetics may well need to be considered. Many branches of science, from biology to geology, may be involved. A wide range of historical and cultural issues might need to be considered if, to take just one example, it were necessary to determine whether a place had a special value for future generations by reason of a strong association with a particular cultural group for social, cultural or spiritual reasons: see s4(1A)(g). In such circumstances the very nature of the task of identifying places that are part of the national estate is suggestive of an intention that the body established by the Parliament with the function of identification is to have the power to make a conclusive determination of that matter. What the respondent argues is "a jurisdictional fact", namely the identity of a place as part of the national estate, is a conclusion of fact and one that must often rest on a range of potentially difficult and complicated facts, assessments and value judgments. If the conclusion that a place is part of the national estate were to be seen as a jurisdictional fact, one of the Commission's most important functions, and a key function in the overall scheme of the Act, would be performed only provisionally. Even where none of the familiar grounds of judicial review could be made out, and there was no suggestion that the Commission had acted otherwise than according to law, the identification of a place as part of the national estate could still be challenged on the facts. Despite the possible application of the principle that weight is given to the findings of fact of a specialist tribunal concerning a jurisdictional fact, there would be something approaching merits review of the Commission's decision since the matter for factual review would be, essentially, the performance of the whole function of identification. The inconvenience of such a result, an inconvenience that would be of a large dimension having regard to the subject matter of the "jurisdictional fact", is a powerful indication that it was not the intention of the Parliament that the finding should, in effect, be only provisional. Rather it suggests that it was the Parliament's intention that the power of the Commission to enter a place in the Register of the National Estate was to be contingent upon the Commission's own view of the matter. Inconvenience is a matter to be considered in ascertaining the intention of the Parliament in this area: Parisienne Basket Shoes v Whyte at 393 per Dixon J; cf Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 538-539 per Sackville J. 19 In Pharmacy Guild of Australia v Australian Community Pharmacy Authority, Branson J applied similar reasoning when she stated at 476: There is, in my view, a real difficulty in seeking to construe the determination as making the power of the Authority to make a favourable recommendation contingent upon the actual existence of a state of fact, as opposed to its own determination of that state of fact. The recommendation of the Authority is necessary before the Secretary can approve an application under s 90 of the Act. The Authority is established with a membership calculated to lead to substantial industry input into its decision making processes. The rules bind the Authority but have no direct relevance to the discretion of the Secretary under s 90(1) of the Act. If the power of the Authority to recommend an approval under s 90 of the Act is contingent upon the actual existence of the prescribed distance, measured by the prescribed route, between the two relevant sites, the Secretary would be unable to act on the recommendation of the Authority until he or she had satisfied himself or herself of the actual existence of that prescribed distance, a task by the rules given to the Authority with its industry representation. In strict theory, the validity of the recommendation would remain an outstanding question until a court or tribunal possessing power to determine the question decided that the prescribed distance did in fact exist (Parisienne Basket Shoes Pty Ltd v Whyte at 391 per Dixon J). Plainly, in my view, neither the Act nor the determination discloses an intention that the Secretary should review the work of the Authority in this way. Branson J considered that although the Rules drew a distinction between matters of fact and matters in respect of which the Authority was to be "satisfied", this distinction did not reflect an intention that the Authority's power to act was contingent upon the actual existence of those matters of fact. Her Honour reasoned that that the distinction between matters of fact and matters in respect of which the Authority was required to be satisfied reflected a distinction between matters capable of objective determination and those which involved an exercise of judgment. 20 In Karalis, Goldberg J rejected the submission that Branson J's reasoning was clearly wrong and that he should not follow her decision. His Honour reasoned: Although par 6(a) is expressed in absolute or objective terms in the sense that it refers to the measurement of a particular route and par 6(b) is expressed in terms of the Authority being satisfied that certain matters exist, I do not consider that the change in words is intended to reflect the fact that the Authority's decision or recommendation is dependent on the fact of the measurement of that route being objectively true. Rather the change in terminology is reflective of the nature of the inquiry to be made. Both sub-pars (a) and (b) are introduced by the words "and one of the following circumstances applies" and, in my opinion, the intention to be deduced from the structure of par 6, taken as a whole, is that the existence of the circumstances which apply is to be determined by the Authority forming the view that they apply. I consider that the application of the principles and considerations referred to by Black CJ in Australian Heritage Commission v Mount Isa Mines Ltd support this conclusion. In particular I have had regard to the relationship between the functions of the Authority and the Secretary and the inconvenience to which a contrary decision would lead. It would leave as an open question whether the Secretary's approval was based on a valid recommendation: at 484. Goldberg J considered that the interpretation of whether something was "the shortest lawful access route" may require an exercise of judgment and assessment and concluded that the power of the Authority to recommend approval was not contingent on the existence of an objective fact that the relevant distance was not exceeded by the shortest lawful access route but on the Authority's opinion that there was the relevant maximum distance. 21 The applicants sought to distinguish those authorities on the basis that the minimum distance requirement in Item 131 of Part 2 to Sch 1 of the Rules involves a simple and objective measurement from one point to another and does not require any exercise of judgment. The applicants also argued that the law as it now stands in light of the High Court decision in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 has given primacy to language and overtaken the approach followed in Pharmacy Guild of Australia v Australian Community Pharmacy Authority and Karalis. Reference was made to Cabal v Attorney-General of the Commonwealth (2001) 113 FCR 154, where Weinberg J stated at [72] that he considered that the approach taken by the High Court in Enfield City Corporation v Development Assessment Commission was somewhat broader than that which has found favour in earlier decisions, including Australian Heritage Commission v Mount Isa Mines Ltd and that there was "nothing special about the task of statutory construction with regard to the determination of whether a factual reference in a statutory formulation is a 'jurisdictional fact' and that all the normal rules of statutory construction apply". 22 In issue in Enfield City Corporation v Development Assessment Commission was a determination made by a relevant authority on an application relating to a proposed development, that the proposed development was "general industry" rather than "special industry", which the authority then dealt with on that basis as required by the regulations. The validity of the authority's determination that the proposed development was "general industry" was challenged as a jurisdictional fact. The High Court held that the criterion of "special industry" was a matter of fact that did not depend on the satisfaction or opinion of the authority, reasoning that taken as a whole the relevant text of the statutory provision was not expressed so as to turn on the satisfaction or opinion of the relevant authority as to the classification of the proposed development. The High Court also held that where the legality of a decision depends on a jurisdictional fact, it is the function of the Court to determine whether the fact does or does not exist having regard to the evidence before the Court, as opposed to the material that had been before the original decision maker. 23 In the present case, the starting point is the text considered in its statutory context. The language of the minimum distance requirement is expressed objectively as a factual requirement in contrast to other requirements prescribed by the Rules that depend upon the Authority's "satisfaction" of certain matters. This suggests that Parliament intended to make a distinction, though the use of objective language is not determinative as the authorities make clear. As Spigelman CJ said in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [89] a matter was less likely to be intended by Parliament to be an objective fact if it was "characteristically, a matter on which reasonable minds may differ": cf Pharmacy Guild of Australia v Australian Community Pharmacy Authority at 476. The applicants reasoned that the minimum distance requirement is not, however, a matter on which reasonable minds may differ because it is a straight line door to door measurement which involves no element of judgment. There is considerable force in that submission, which I accept. 24 I do not consider it necessary to express a view on whether Pharmacy Guild of Australia v Australian Community Pharmacy Authority and Karalis would be decided differently following Enfield City Corporation v Development Assessment Commission. Those cases can be distinguished upon the basis that they related to a different requirement with some differences in statutory context. It is significant that the requirement under consideration here stipulates in express terms a fact that is objectively determinable, not requiring any degree of evaluation. This is reinforced by r 8 which delineates the reference points from which the measurement is to be taken. There is no element of judgment involved. 25 I am satisfied that the minimum distance requirement is a jurisdictional fact and that the jurisdiction of the Authority and the Secretary to exercise their powers in relation to a grant of approval is made subject to the existence in fact that the minimum distance requirement is met. As Spigelman CJ stated in Timbarra Protection Coalition Inc v Ross Mining NL at [37] – [38]: The issue of jurisdictional fact turns and turns only, on the proper construction of the statute: see, eg Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122 at 125; 63 WN (NSW) 31 at 33. The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislation intends that the absence or presence of the fact will invalidate action under the statute (essentially): Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 859 – 861; 153 ALR 490 at 515-517. "Objectivity" and "essentiality" are two interrelated elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are inter-related because indicators of "essentiality" will often suggest "objectivity". "Essentiality" is mandated by r 11 which provides that the Authority must not make a recommendation for approval unless, amongst other things, the minimum distance requirement is met. 26 In this case, the undisputed fact is that the proposed premises is less than 1.5 kilometres from the nearest approved premises. In that circumstance, it follows that the minimum distance requirement was not met and in consequence both decisions are affected by jurisdictional error. 27 If am wrong and the minimum distance requirement turns upon the Authority's opinion or judgment of that fact, such opinion or judgment, in any event, was not in my view formed reasonably upon the material before the Authority and Secretary: Enfield City Corporation v Development Assessment Commission at [34]. The third and fourth respondents argued that the Authority and Secretary reasonably believed on the basis of the material provided to them that the location of the proposed premises was 66 Howitt Avenue. Assuming the correctness of that submission, it does not assist them. The Google Earth map on which the Authority and Secretary both relied to satisfy themselves that the requirement was met, was measured from a point that was not the actual location of the proposed premises and, therefore, was not evidence before them of the straight line distance between the proposed premises and the nearest approved premises. There was simply no evidence at all of the distance between the proposed premises and the nearest approved premises on which to satisfy themselves that the minimum distance requirement was met. To put it another way, the measurement in the Google Earth map was not the measurement required by r 8 of the Rules and the Google Earth map did not, and could not, constitute evidence of the minimum distance requirement. 28 Accordingly, these grounds have been made out. Ground 3 –The "no evidence" ground 29 This ground requires the applicants to show that there was no evidence or other material to justify the making of the decisions and that: a) the Authority and Secretary were obliged by law to reach their decisions only if the minimum distance requirement was met and there was an absence of evidence or either material from which they could reasonably be satisfied that the requirement was met; or b) that they based their decision on the existence of the fact that the minimum distance requirement was met and that fact does not exist: AD(JR) Act, s 5(3); Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-1; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 at 234, 240 and 257. 30 Ground three must also succeed and the reasons may be shortly stated. As the Google Earth map showed a measurement taken from a wrong location, the map was not evidence before the Authority and Secretary of the actual distance between the two premises. The first limb is satisfied because the minimum distance is a jurisdictional fact and there was no other material before them from which they could reasonably be satisfied that the requirement was met. The second limb is also satisfied because the actual distance is less than the prescribed minimum distance. Ground 4 - An improper exercise of power 31 Section 5(2) of the AD(JR) Act provides that it is an improper exercise of power within the meaning of s 5(1) for a decision maker to take into account irrelevant considerations or fail to take into account relevant considerations in the exercise of a power. 32 This ground is also made out. In relying upon the Google Earth map, the Secretary and the Authority took into account an irrelevant consideration because the map showed the measurement from the wrong location and failed to take into account the consideration that they were bound to take into account: viz, the actual distance between the proposed premises and the nearest approved premises. 33 However, the applicants' additional contention that the Authority and Secretary failed to take into account a "relevant consideration", namely what the handbook published by the Department of Health and Ageing said about the kind of supporting evidence that should be provided to satisfy the minimum distance requirement, cannot be accepted. The purpose of the handbook is to provide information and guidance to pharmacists who wish to make an application for approval to supply pharmaceutical benefits. Amongst other things, the handbook states that if the distance separating the nearest approved pharmacy and the proposed premises is substantially greater than 1.5 kilometres "it may be sufficient" to provide a scaled map highlighting the two premises and the approximate straight line distance using the scale on the map as the basis. If the distance between both premises is "very near to the required distance", the handbook advises that "applicants should provide a surveyor's report of the measurement of the straight line distance" and then sets out what the surveyor's report "should include". These are not "policies" or guidelines to which the Authority and Secretary must have regard in exercising their powers. The argument misconceives Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-1 upon which the applicants relied in support of this contention. ground 5 - failure to follow procedures required by law 34 This ground relies on the same point about the handbook. For the same reasons, this ground must fail. STANding of the third to seventh respondents 35 It was faintly argued by the third and fourth respondents that the third to seventh applicants do not have standing to bring these proceedings because their pharmacies are not within 1.5 kilometres from the proposed premises. This argument is also rejected. Standing depends on whether the third to seventh applicants are "persons who are aggrieved" by the decisions of the Authority and Secretary: AD(JR) Act, ss 3(4) and 5. It is well established law that a "person aggrieved" does not have to establish that he or she has a legal interest at stake in the making of the decision. It is sufficient to give standing that the third to seventh applicants can show a grievance that they will suffer as a result of the decisions complained about beyond that which they have as ordinary members of the public. I adopt and apply the reasoning of Branson J in Pharmacy Guild of Australia v Australian Community Pharmacy Authority: The statutory provisions with which this case is concerned are (putting aside certain amendments which do not go to the broad purpose of the provisions) the same as those considered by the Full Court of this Court in Pharmacy Restructuring Authority v Martin. In that case the Court stated (at 597): "The relevant provisions are not concerned with minimizing 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." The means by which the above objective was to be achieved is revealed by cl 3 of the agreement. Such means involve the maintenance of the benefits of restructuring in the pharmaceutical industry and the enhancement of the development of "an effective, efficient and well-distributed community pharmacy service in Australia". It seems to me that the second to fifth applicants have, by reason of par 6(c) of the determination, an interest which rises above that of an ordinary member of the public in the development and maintenance of "an effective, efficient and well-distributed community pharmacy service" in that small portion of Australia in the near vicinity of the Kareela premises. Their interest is, in my view, an interest which is relevant to the process which the Act establishes and to the decision here challenged, and it is not in conflict with the interests which the Act promotes (see Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 261 per Davies J): at 473. The third to seventh applicants are proprietors of another nearby pharmacy and I accept that this gives them an interest which rises above that of an ordinary member of the public. relief 36 There will be orders setting aside the recommendation of the Authority and the approval of the Secretary. I will hear submissions on when those orders should become effective. I will also make an order referring the third and fourth respondent's application for approval in respect of the premises to the Authority and the Secretary respectively for further consideration according to law. 37 I shall hear the parties on the question of costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate: Dated: 2 October 2013 SCHEDULE OF PARTIES First Applicant Steven Kastrinakis Second Applicant John Kardis Third Applicant Timothy Daniel Shelton Fourth Applicant David Louis Preston Fifth Applicant Katie Louise Wait Sixth Applicant Lachlan James Pearce Seventh Applicant Michelle Anne Shelton First Respondent Australian Community Pharmacy Authority Second Respondent Secretary of the Department of Health and Ageing Third Respondent Lusha Liu Fourth Respondent Betty Karalis