Case: Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462
Outcome: approved
support of its construction of rule 6 the respondent referred to Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 and a decision of Deputy President McMahon of the Administrative Appeal Tribunal in Re Levis and Australian Community Pharmacy Authority (1998) 51 ALD 757. Both of these cases were concerned with earlier versions of the rules than those presently under consideration. The rules considered by Branson J in the Pharmacy Guild case were made by a determination under s 99L of the Act on 2 May 1995 and were set out in her Honour's reasons at 465-466 as follows: '3. For the purposes of paragraph 99K(1)(b) of the Act, the rules with which the Authority must comply in making a recommendation on an application by a pharmacist for approval under s 90 of the Act in respect of particular premises are set out in paragraphs 4 to 9. 4. Approval of a pharmacist under section 90 of the Act in respect of particular premises must not be recommended except as provided for in paragraphs 5 to 8. ... 6 . ... approval of a pharmacist under section 90 of the Act in respect of particular premises must be recommended if the pharmacist is already approved under section 90 of the Act in respect of other premises from which the pharmacist proposes to cease supplying pharmaceutical benefits immediately before granting the approval if: ... (c) the premises in respect of which approval is sought are not less than two kilometres, measured door to door by the shortest lawful access route, from the nearest other premises in respect of which a pharmacist is approved under s 90 of the Act ... ' Branson J rejected the submission that these provisions required the decision maker to determine which were the 'nearest other premises' by a straight line measurement before establishing the measurement of the shortest lawful access route from those premises to the premises in respect of which approval was sought. Her Honour found no warrant for such an approach in the words of the provision and held that in relying on evidence as to which pharmacy in the vicinity of the proposed premises was the 'closest' the decision maker took into account an irrelevant consideration. Her Honour commented (at 478): 'The issue before it was not whether the Oyster Bay pharmacy was the closest relevant pharmacy to the [proposed premises] but whether the distance from the nearest other relevant premises measured door to door by the shortest lawful access route to the [proposed premises] was less than 2 kilometres. The provisions considered in Re Levis were not relevantly different and Deputy President McMahon relied upon the decision in the Pharmacy Guild case in reaching a similar conclusion. I respectfully accept that the context of the phrase 'nearest other premises' justified Branson J's conclusion in the Pharmacy Guild , and that this meaning might coherently be adopted in respect of the present provisions. However, the present provisions are different from those considered by Branson J and the significance of that difference must be examined. Whereas previously the relevant rules used only one criterion to test distance from the nearest other premises, rule 6, in 6(b)(i) and 6(b)(ii) respectively, uses both the straight line measurement and the lawful access measurement. Accordingly, there is a competing principle to the principle of contextual analysis applied by Branson J namely the 'sound rule of construction' referred to in [8] above. The issue is which of the two competing principles should prevail?