Case: Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348
Outcome: referred to
agree with both parties that, as the two limbs of rule 6(b) are separated by the disjunctive, 'or', the applicant only needed to show that the proposed premises satisfied one of the two limbs of rule 6(b). The Tribunal was in error on this point however as, for reasons given below, I have concluded that the Tribunal's ultimate conclusion was not affected by this error, nothing turns on it. The real issue in the appeal is the meaning of the phrase 'nearest other premises' which occurs in both rule 6(b)(i) and 6 (b)(ii). In particular, the issue was whether the phrase had the same or different meaning in each subrule. Despite a cogent argument put by Mr Zipser, counsel for the applicant, I have concluded that the meaning of the phrase is determined by the context of the subrule in which it occurs and for that reason 'nearest other premises' has a different meaning in each subrule. It would seem that the Minister's new determination yields a result consistent with the result that would flow from the applicant's interpretation but this does not seem to me to assist in the interpretation of the rules that apply to the current application. As indicated above, the rules under consideration here were implemented pursuant to the Third Community Pharmacy Agreement. The 2006 determination is made pursuant to the Fourth Community Pharmacy Agreement. The preamble to Part 4 of the Fourth Community Pharmacy Agreement notes that, in addition to correcting difficulties associated with the previous location rules, the amendments to the location rules contained in the agreement 'are intended to provide greater flexibility to respond to community need for pharmacy services and to improve access to pharmacy services'. In addition, the Fourth Community Pharmacy Agreement indicates several objectives of the Location Rules that are not evident in the Third Community Pharmacy Agreement for instance to ensure that 'all Australians have access to PBS medicines'. It seems clear that the Fourth Community Pharmacy Agreement has different objectives from the Third Agreement even if those objectives have evolved from those in the earlier Agreement. There is no basis on which to suggest that the later rules can be relied on to clarify the meaning of the earlier rules. In the circumstances the caution advocated by Gummow J in Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 382 is well advised. The orders in this matter must be that the respondent's notice of contention is upheld, the application is dismissed and the applicant must bear the respondent's costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 28 September 2006 Counsel for the Applicant: B Zipser Solicitor for the Applicant: McCarthy Holzberger Counsel for the Respondent: R M Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 27 June 2006 Date of Judgment: 28 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1289.html