Kong v Minister for Health

Federal Court of Australia|2014-02-06|Before: Mr P, Mr J, Buchanan J

Number of paragraphs: 87

Counsel for the Applicants: Miss R M Henderson

Solicitor for the Applicants: Meridian Lawyers

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second and Third Respondents: Mr J S Emmett

Solicitor for the Second and Third Respondents: Esplins Solicitors

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1150 of 2012

JUDGE: BUCHANAN J DATE OF ORDER: 6 february 2014 WHERE MADE: SYDNEY

The application is dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1150 of 2012

JUDGE: BUCHANAN J DATE: 6 february 2014 PLACE: SYDNEY

Background 1 On around 16 May 2011, the second and third respondents, Mr Mahony and his daughter, Ms Mahony, opened a pharmacy business in the town of Moree in New South Wales at Shop 2, 215 Balo Street, Moree. About one week later, they applied to the first respondent ("the Minister") for approval under s 90 of the National Health Act 1953 (Cth) ("the National Health Act") to supply pharmaceutical benefits (i.e. certain subsidised drugs - see ss 84, 85(2) and 86 of the National Health Act) at the premises ("the application"). This was not the first such application they had made, but it was the one which has led to the current proceedings. I shall refer to the earlier applications shortly. 2 At the time of the application there were two existing approved pharmacies in Moree, each owned by Jeremy Francis. One of those pharmacies was located at 64 Balo Street, Moree about 440 metres from the business of the second and third respondents. The other was located about 2 kms away at Shop 2, 100 Amaroo Drive, Moree. During the course of the events which have led to the present proceedings, Mr Francis sold his interest in those two pharmacies to the applicants. 3 Under the National Health Act, approval of an application of the kind made by the second and third respondents concerned the premises at which pharmaceutical benefits might be supplied, as well as the pharmacist who might supply them. Section 90(1), (2), (3) and (3A) of the National Health Act provides: 90 Approved pharmacists [see Note 1] (1) Subject to this section, the Secretary may, upon application by a pharmacist for approval to supply pharmaceutical benefits at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at those premises. (2) Where a pharmacist desires to supply pharmaceutical benefits at more than 1 premises, a separate application shall be made in respect of each of the premises and, where approval is granted in respect of 2 or more premises, a separate approval shall be granted in respect of each of the premises. (3) Subject to this section, where an approved pharmacist desires to supply pharmaceutical benefits at premises other than premises in respect of which approval has been granted, the Secretary may on application by the approved pharmacist, grant approval in respect of those other premises. (3A) Subject to subsections (3AA) and (3AE), an application under this section must be referred to the Authority. … (subsections (3AA) and (3AE) are not here relevant). 4 The application for approval made on 23 May 2011 was referred to the Australian Community Pharmacy Authority ("the Authority") as required by s 90(3A) of the National Health Act. Under "Rules" made under s 99L(1) of the National Health Act, which were contained in the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 (Cth), the Authority was obliged to recommend against approval of the premises of the second and third respondents if there were already two approved pharmacies in the relevant "catchment area" ("Rule 107"). The single ownership of the existing approved pharmacies was not relevant to the assessment to be made by the Authority. 5 The application asserted, in support of the claim for approval, that there was only one other pharmacy in the relevant catchment area and, in substance, that the other conditions for approval were met. More specifically, it was asserted that the pharmacy operated by Mr Francis at 64 Balo Street was the only other pharmacy in the relevant catchment area and that the pharmacy operated by Mr Francis at Amaroo Drive was not within the catchment area. Those contentions were not accepted by the Authority. Therefore, having regard to the fact that there were already two approved pharmacies in Moree, the Authority recommended, and a delegate of the Minister agreed, that approval to the second and third respondents for a third pharmacy should be refused. 6 As I said earlier, the application made on 23 May 2011 was not the first such application. Over a period of time from mid-2010, after Mr Mahony and his daughter had decided to attempt to establish another pharmacy in Moree, they made a number of unsuccessful applications for approval of a third premises in Moree from which to supply pharmaceutical benefits. As their applications were rejected, the second and third respondents attempted progressively to frame submissions which would overcome the earlier reasons for rejection. At first, the second and third respondents advanced arguments in support of their applications which they developed personally. Later, they engaged the assistance of a consultant. 7 Mr Francis was notified of these various applications and, so far as the evidence shows, submitted his opposition to the applications as he saw fit. 8 In respect of one of their earlier unsuccessful applications, the second and third respondents had applied to the Minister to substitute a more favourable decision - namely approval of their application - for that of the delegate. That application, which engaged the provisions of s 90A of the National Health Act referred to below, was unsuccessful. The Minister did not agree to consider that request. 9 On 9 September 2011, after rejection of their application made on 23 May 2011, the second and third respondents again took that further step available to them under the National Health Act. They applied to the Minister to personally exercise the Minister's discretion under s 90A(2) of the National Health Act to grant them approval, despite the decision of the delegate, by substituting a favourable decision. 10 Section 90A of the National Health Act provides: 90A Minister may substitute decision approving pharmacist (1) This section applies in relation to a decision of the Secretary under section 90 rejecting an application by a pharmacist for approval to supply pharmaceutical benefits at particular premises, if: (a) the application was made on or after 1 July 2006; and (b) the decision was made on the basis that the application did not comply with the requirements of the relevant rules determined by the Minister under section 99L. (2) The Minister may substitute for the Secretary's decision a decision approving the pharmacist for the purpose of supplying pharmaceutical benefits at the particular premises if the Minister is satisfied that: (a) the Secretary's decision will result in a community being left without reasonable access to pharmaceutical benefits supplied by an approved pharmacist; and (b) it is in the public interest to approve the pharmacist. (3) For the purposes of subsection (2): community means a group of people that, in the opinion of the Minister, constitutes a community. reasonable access, in relation to pharmaceutical benefits supplied by an approved pharmacist, means access that, in the opinion of the Minister, is reasonable. (4) The power under subsection (2) may only be exercised: (a) on request by the pharmacist made under section 90B; and (b) by the Minister personally. (5) Subject to subsection 90B(5), the Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of the Secretary's decision. (6) The power under subsection (2) does not authorise the Minister to approve a pharmacist for the purpose of supplying pharmaceutical benefits at particular premises at which the pharmacist is not permitted, under the law of the State or Territory in which the premises are situated, to carry on business. (7) A decision by the Minister not to exercise the power under subsection (2) in respect of the Secretary's decision does not prevent the pharmacist from making an application to the Administrative Appeals Tribunal under subsection 105AB(7) for review of the Secretary's decision. (8) For the purposes of this section (other than subsection (7)): (a) a reference to a decision of the Secretary includes a reference to a decision of the Secretary that has been affirmed by a decision of the Administrative Appeals Tribunal or an order of a federal court; and (b) a reference to a decision of the Administrative Appeals Tribunal includes a reference to a decision of the Administrative Appeals Tribunal that has been affirmed by an order of a federal court. 11 The Minister was first required to consider whether to consider the request to substitute a different decision, and to do so within three months of receiving the request (s 90B(4)). On 29 November 2011, the Minister for Health (then the Honourable Nicola Roxon) decided to consider the request made on 9 September 2011 that she substitute a different decision and grant approval. 12 Once the Minister had decided to consider the request for personal approval made on 9 September 2011, she was required to decide within a further three months (s 90B(5)) whether to substitute approval for rejection of the application made on 23 May 2011. 13 On 27 February 2012, the Minister (then the Honourable Tanya Plibersek) decided that the premises proposed by the second and third respondents should be approved as an additional pharmacy in Moree from which to supply pharmaceutical benefits. That decision was notified to the second and third respondents on 2 March 2012. A "Statement of Reasons" ("the Reasons") dated 13 July 2012, explaining the decision, was later signed by the Minister. The Reasons were provided after proceedings had been commenced in this Court, pursuant to an agreement to do so made on 20 June 2012. I shall set out the material parts of the Reasons later in this judgment. 14 In the meantime, and before either decision was made, on 1 November 2011 the applicants purchased the two earlier approved pharmacy businesses from Mr Francis and obtained the necessary approvals for them to supply pharmaceutical benefits at those two pharmacies. 15 The applicants claim in the present proceedings that they were not notified that the second and third respondents had applied for the personal approval of the Minister. They contend that they have been denied natural justice and that if they had known about that application, and its contents, they would have been in a position to contradict or qualify claims made by the second and third respondents, particularly about the operation of the pharmacy at Amaroo Drive, opening hours of the two approved pharmacies, issues concerning competition for the supply of pharmaceutical benefits, issues about ownership of the two approved pharmacies (which changed on 1 November 2011 from ownership by a single registered pharmacist to ownership by three registered pharmacists) and the significance of a petition relied upon by the second and third respondents which, it was alleged, proceeded upon false premises. I shall refer further to the petition in due course. The applicants claim further that the Minister's decision of 27 February 2012 has had a significant adverse financial impact on them and the value of the businesses which they purchased.

The application to this Court 16 The application to this Court is made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The grounds pressed in final submissions were as follows: 1. The applicants seek review under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) of a decision made by the Minister for Health granting approval to the second and third respondents to supply pharmaceutical benefits at premises in Moree. The issues are: • whether the [first respondent] denied the applicants procedural fairness - s 5(l)(a) ADJR Act; • whether the [first respondent] misinterpreted and misapplied the expression "a community being left without reasonable access to pharmaceutical benefits" in s 90A(2)(a) of the National Health Act 1953 - ss 5(1)(e) and 5(2)(a) ADJR Act; and s 5(1)(f) ADJR Act; and • whether the [first respondent] misinterpreted and misapplied the expression "in the public interest" in s 90A(2)(b) of the National Health Act 1953 - ss 5(l)(e) and 5(2)(a) ADJR Act; and s 5(l)(f) ADJR Act. 17 Section 5(1)(a), (e) and (f) and s 5(2)(a) of the ADJR Act provide as follows: 5 Applications for review of decisions (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; … (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; (f) that the decision involved an error of law, whether or not the error appears on the record of the decision; … (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (a) taking an irrelevant consideration into account in the exercise of a power; … 18 Each of the respondents filed an objection to the competency of the proceedings commenced by the applicants, contending in each case that the applicants are not persons who are "aggrieved" by the Minister's decision. The Minister later withdrew the objection. The second and third respondents pressed it.

Denial of procedural fairness 19 The first matter which, logically, requires consideration is whether the applicants were denied procedural fairness by the Minister because they were not invited, or given any opportunity, to make a submission to the Minister in opposition to the application that the Minister personally approve the pharmacy proposed by the second and third respondents as premises for the supply of pharmaceutical benefits. 20 The applicants had become the joint owners of the existing approved pharmacies in Moree on 1 November 2011, before Minister Roxon agreed to consider the request to substitute a more favourable decision. Minister Roxon was provided with submissions by Mr Francis which were sent to the Authority, but it is accepted that no opportunity was extended to the applicants (or Mr Francis) by Minister Roxon or Minister Plibersek to address the application made on 9 September 2011. 21 The National Health Act does not require that such an opportunity be provided, although it does permit the Minister to seek material from an applicant or other persons. Section 90D(1) provides: 90D Provision of further information (1) For the purpose of deciding whether to consider a request made by a pharmacist under subsection 90B(1) or whether to exercise the power under subsection 90A(2) in relation to such a request: (a) the Minister may, by notice in writing given to the pharmacist, require the pharmacist to provide such further information, or produce such further documents, to the Minister as the Minister specifies, within the period specified in the notice; and (b) the Minister may give a notice in writing to any other person: (i) advising the person of the request; and (ii) inviting the person to provide comments on, or information or documents relevant to, the request within the period specified in the notice. 22 It was suggested in argument that one consequence of s 90D was to avoid any suggestion of breach of confidentiality or secrecy provisions elsewhere in the National Health Act. Accepting that suggestion as cogent, the existence of a discretion in those terms nevertheless suggests immediately, in my view, that no obligation of the kind proposed by the applicants should be found to exist. 23 Furthermore, there is an established line of authority in this Court to the contrary of the proposition. 24 In Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589 ("Martin"), a Full Court considered an argument that the Authority was obliged to afford procedural fairness to pharmacists who would be affected by approval of another pharmacist in the same area before recommending such approval. The Full Court rejected the argument, saying (at 597): There are cases where a statutory authority, charged with the duty of considering an application to use premises for a particular purpose, is expressly obliged to publicise the receipt of the application and to consider objections. Liquor legislation is a well known example. There are cases where such an obligation is implied by the scope and purpose of the legislation. But we do not know of any general principle to the effect that a statutory authority charged with the duty of considering an application is obliged by the principles of procedural fairness to notify and hear everybody whose economic interests may be damaged by an approval. To promulgate a general rule imposing such an obligation would be to visit upon statutory decision-makers a potentially massive task of indeterminate reference. In the present case, nothing is to be implied from the scope and purpose of the Act. The relevant provisions 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. In the absence of authority, we are not prepared to hold that, if it had a discretion about its decision, the Authority had any obligation to notify or hear pharmacists, non-parties to the application for approval, merely because an approval might commercially damage them. 25 Martin was referred to as binding by Whitlam J in Loveridge v Pharmacy Restructuring Authority (1995) 39 ALD 103 at 106 ("Loveridge"), by Branson J in Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 ("Pharmacy Guild") at 475 and by Siopis J in Wong v Australian Community Pharmacy (2011) 193 FCR 490 ("Wong") at [74]. In Wong, Siopis J observed about Martin, Loveridge and Pharmacy Guild (at [63]) that: 63 The nature of the interest which the affected pharmacists in all three of the abovementioned cases, unsuccessfully asserted as entitling them to be heard in opposition to the competing pharmacist's application for approval, is not, in my view, distinguishable from the interest asserted by Mr Wong, namely, the potential diminution in revenue arising from the introduction of the competing pharmacist. 26 Those observations seem to me to apply directly to the present case also. Each of Martin, Loveridge, Pharmacy Guild and Wong concerned deliberations by the Authority (or its predecessor) rather than the Minister, but I see no relevant point of difference in that circumstance so far as the rules of natural justice or procedural fairness are concerned (see also Pharmacy Guild at 475 B-C). 27 The applicants sought to meet this line of authority by arguing first that Martin concerned earlier regulatory arrangements subscribed to by the Government and the Pharmacy Guild. However, Wong did not. In Wong, Siopis J said (at [64]-[66]): 64 Secondly, Mr Wong contended that the statutory scheme in operation at the time of the decision in Martin, was different to the current statutory scheme. In particular, Mr Wong said that the previous scheme directed attention to the restructuring of pharmacies and was not concerned with competition. However, the current scheme, said Mr Wong, is concerned with competition. It was said that an object of the fourth Pharmacy Guild agreement is to improve efficiency through increased competition between pharmacies. 65 In my view, this contention does not assist Mr Wong, because his claim to be entitled to be heard is founded on a claim that his economic interest will be adversely affected by increased competition from a pharmacy operated by Mr Pearson. The Full Court in Martin found that, even under the previous statutory scheme, this interest was not a sufficient interest to afford an affected existing pharmacist, a right to be heard in opposition to the approval of an application to provide pharmaceutical benefits by an applicant who is likely to compete with the business operated by the existing pharmacist. 66 As Wilcox J (with whom Foster and Whitlam JJ agreed) observed in Martin, the "relevant provisions were not concerned with minimising competition". The position would be a fortiori under the existing statutory regime which is said to be intended to give effect to a policy of increasing competition. 28 The references by Siopis J to "the existing statutory regime" may be understood as a reference to the regime which applied for the purposes of the present proceedings. 29 The applicants also rely on more recent judgments of Jessup J and Jagot J, which are discussed below, to argue that in the present case the Minister was bound to accord them procedural fairness and failed to do so. 30 In Yu v Minister for Health [2013] FCA 261 ("Yu"), Jessup J dealt with a case which also concerned a request to the Minister to substitute a more favourable decision in relation to approval of a pharmacy to supply pharmaceutical benefits. The request had not been notified to an existing approved pharmacy, which had been given no opportunity to respond to it. Jessup J held that the rules of natural justice applied in the case with which he was dealing. However, his Honour's conclusion in that regard was based on circumstances which provided a reason to distinguish the authorities in this Court to a contrary effect to which I have referred. 31 Mr Yu had applied to relocate his pharmacy premises. In the interregnum between finalisation of the relocation application and conclusion of the existing approval, he was regarded as holding two "approvals". That technical position came into existence at the very time that it became possible to have two, not one, pharmacies in the area. The fourth respondent to the proceedings was rejected as the second pharmacy because of Mr Yu's two "approvals", even though he was only applying for relocation of a single approval. 32 Then Mr Yu withdrew his application to relocate and applied for a substantive second approval. Meanwhile, the fourth respondent had sought, and obtained, the Minister's personal approval. The Minister did not notify Mr Yu of that request or give him any opportunity to be heard. Jessup J found Mr Yu's interest in his own, pending application to be one which gave him a statutory, not merely an economic, interest. 33 Jessup J said (at [34]-[36]): 34 With respect to the sufficiency of the applicant's interest, one commences with the judgment of Mason J in Kioa v West (1985) 159 CLR 550 at 584: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Subject to the excision of the reference to "legitimate expectations" by the judgment of Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 290 ALR 616, 633 [65], this remains the accepted statement of the law with respect to the interest required to give rise to an obligation to accord procedural fairness in the making of an administrative decision. On the facts of the present case, it is not difficult to see how the interests of the applicant were affected by the Minister's decision under s 90A in favour of the fourth respondents. 35 The respondents rely, however, on the judgment of the Full Court in Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589. That case also involved a recommendation under s 90 of the NH Act with respect to pharmacy premises, and it was claimed by pharmacists who operated nearby that they should have been accorded procedural fairness before the recommendation was made. Their Honours said (53 FCR at 597): There are cases where such an obligation is implied by the scope and purpose of the legislation. But we do not know of any general principle to the effect that a statutory authority charged with the duty of considering an application is obliged by the principles of procedural fairness to notify and hear everybody whose economic interests may be damaged by an approval. To promulgate a general rule imposing such an obligation would be to visit upon statutory decision-makers a potentially massive task of indeterminate reference. In the present case, nothing is to be implied from the scope and purpose of the Act. The relevant provisions 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. In the absence of authority, we are not prepared to hold that, if it had a discretion about its decision, the Authority had any obligation to notify or hear pharmacists, non-parties to the application for approval, merely because an approval might commercially damage them. Martin was treated as binding, and applied on corresponding facts, in Loveridge v Pharmacy Restructuring Authority (1995) 39 ALD 103, 106, Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462, 474 and Wong v Australian Community Pharmacy Authority [2011] FCA 52 at [63]. 36 In my opinion, the judgment of the Full Court in Martin is distinguishable, and does not govern the disposition of the present case, because here the applicant had an interest greater than the economic one of a competing pharmacist to which their Honours referred in the passage extracted from that case above. In the unusual circumstances brought about by the commencement of the 2011 Rules, there was to be one, and one only, additional pharmacy approved for the town of Kilmore. As someone who had applied to be that approved pharmacist, the applicant had an interest which was defeated upon the Minister giving approval to the fourth respondents' application under s 90A of the NH Act. That interest had a statutory, and not merely an economic, source. It was an interest which existed whether or not the Minister was aware of the applicant's application at the time of making her decision, but, as it happened, she was so aware, as she had been notified of that application in the departmental minute to which I have referred. In my view, the applicant had a direct interest in the disposition of the matter which came before the Minister under s 90A and had, therefore, a prima facie right to be accorded procedural fairness in relation to that decision. (emphasis added) 34 The 2011 Rules to which his Honour referred did not apply to the application made by the second and third respondents on 9 September 2011; the 2011 Rules applied to consideration by the Authority of an application made on or after 18 October 2011. More importantly, the special interest which Jessup J identified does not exist in the present case. There is no circumstance in the present case analogous to that identified by his Honour in the passage in the extract which I emphasised. 35 Accordingly, there is no foundation in Yu for distinguishing earlier, binding authority in the present case. 36 In Hanna v Minister for Health [2013] FCA 303 ("Hanna"), Jagot J (at [49]) appeared to regard Yu as: 49 … authority for the proposition that the power in s 90A(2) is conditioned on the observance of procedural fairness. … 37 Her Honour went on, however, to find that a case of denial of procedural fairness was not made out on the facts. Her Honour did not refer to the line of cases identified by Jessup J in Yu as authority for the contrary proposition in the ordinary case and, in light of her Honour's findings on the facts, there was no need to pursue the matter further. 38 I consider that I am bound to follow and apply the view of the Full Court in Martin unless compelled by some relevant distinguishing feature of the present case to take a different view. In particular, I am bound to respect and apply the observations of the Full Court to the effect that the statutory provisions under which the Minister made her decision are not directed, as such, to minimising competition or protecting the commercial interests of other pharmacists. 39 I am also obliged, by considerations of comity, to approach the issue conformably with the approach taken by Siopis J in Wong, unless satisfied that his Honour made an error of sufficient magnitude to justify departure from that approach. I am not satisfied that there was such an error. On the contrary, my views about the matter appear to coincide with those of Siopis J. 40 The Minister was not obliged to notify the applicants that she had received a request to substitute a more favourable decision for that of the delegate. The Minister was not obliged to afford the applicants an opportunity to be heard. The applicants were not denied procedural fairness.

Practical injustice 41 The second and third respondents argued that, in any event, any obligation on the part of the Minister to afford procedural fairness was defeated by the fact that the applicants had suffered no "practical injustice" because they had failed to act in their own interests. The submission was based on the factual premise that the applicants knew (or should have realised) that the second and third respondents had applied to the Minister for the exercise of a personal discretion and on a principle said to have been stated by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 ("Lam"). 42 In light of my conclusion that the Minister was not obliged to afford the applicants an opportunity to make submissions, and that there was no denial of procedural fairness, what I have to say about this issue is not critical to the result of the case, but as the submission was pressed it is appropriate to deal with it in case there is an appeal. In my view, the argument was misconceived and not supported by the facts. 43 The passages relied upon from Lam appear at [37], but [34], [36] and [38] are relevant also. In those paragraphs, Gleeson CJ said: 34 The applicant seeks to establish that he was denied procedural fairness. He does not claim that any unfairness exists apart from that created by the statement of 7 November 2000 and the subsequent change of intention without notification to him. The argument is that the letter created an expectation, and fairness required that the procedure foreshadowed in the letter (contacting Ms Tran) should not be departed from without the applicant being informed of the intention to do so. It is not in dispute that, regardless of the letter of 7 November, the respondent was obliged to extend procedural fairness to the applicant. And it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed. … 36 The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment. 37 A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. 38 No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children. (citations omitted) 44 As those remarks show, it was accepted that the litigant there was entitled to procedural fairness. The question at issue was whether the litigant had been deprived of an opportunity to advance his case because he had been misled about the procedure which would be followed. Gleeson CJ was clearly not intending to state a new principle, or put a gloss on an established one. In my view, the remarks at [37] were taken out of context for the purposes of the argument in the present case, and do not support the contentions advanced by the second and third respondents. Nor, in my view, do the facts. 45 I am satisfied that, by the time they purchased Mr Francis' two pharmacies, the applicants were aware of the efforts by the second and third respondents to secure approval for a third pharmacy. However, the applicants had a high degree of confidence that further, or repeated, applications would produce no better result for the second and third respondents. In large part that confidence was based, correctly, on the applicants' assessment that Rule 107 did not contemplate a third pharmacy in the Moree area, and the Authority had no discretion to depart from the operation of Rule 107. 46 The applicants were also aware that the Minister had declined to consider a request to substitute a more favourable decision for one of the rejections (of the second application) and were no doubt thereby reinforced in their own assessment of the unlikelihood that the Mahonys could succeed. 47 It has been suggested that the applicants should have anticipated that a further request could be made to the Minister but the suggestion is highly speculative. No such request, for example, was made with respect to the third or fourth applications. When a request of this kind was earlier made, the Minister declined to consider it. I do not accept that, expressed at this level of generality, the applicants failed to pay sufficient regard to their own interests, or that any failure to monitor the position more closely could be used as a basis to deny the applicants relief if the Minister had failed to accord them procedural fairness. 48 However, the second and third respondents relied also on more specific matters. First, they actually opened their pharmacy in May 2011 without having obtained approval. Having regard to commercial practicality, I accept that this was a good indication, the significance of which the applicants would have been aware, that the second and third respondents were actively pursuing approval for a third pharmacy, despite the earlier rejections. 49 Secondly, the second and third respondents commenced a public campaign to garner public support for a third pharmacy. There were advertisements in the local paper, there were signs displayed prominently in their premises and there was a petition which was referred to in advertisements and promoted by way of directly placing it in the vicinity of their premises. These were all open and public indications that the second and third respondents were pursuing their attempt to gain approval. I am satisfied that the applicants were aware of such matters, but nevertheless assessed the chances of success as slight or non-existent. 50 Thirdly, the second and third respondents each gave evidence that in a discussion at their premises on 17 January 2012, Mr Mahony explicitly informed two of the applicants (Mr Kong and Mr Coleman) of the most recent request to the Minister, that the Minister had agreed to consider the request and that the result would be known by the end of February. This aspect of the discussion was steadfastly denied by Mr Kong and Mr Coleman, although they accepted that Mr Mahony had indicated that he would not be interested in discussing a possible sale of his business until after February 2012. 51 Cross-examination of Mr Mahony created some doubt whether his assertions about this matter should be accepted. If I had to decide the issue I could not be satisfied, ultimately, that explicit advice of the kind he referred to was in fact given to the applicants. However, even if it was it does not seem to me that it would provide a reason to deny the applicants relief if the Minister had a duty to seek a submission from them about the request she had decided to consider, or give them an opportunity to make a submission if they wished. 52 It would only be in circumstances when the Minister has such a duty or obligation that it is relevant to contemplate that such a submission might be offered. There might be little point in a gratuitous uninvited submission to a Minister under no obligation to pay any regard to it. At best such an initiative would be based on hope and optimism rather than any legitimate expectation. 53 On the other hand, a duty to invite a submission, or afford an opportunity to be heard, would not be obviated because it was open to the applicants to simply volunteer their views uninvited. 54 Ultimately, the issue is whether the Minister had a duty to afford the applicants an opportunity to be heard. If she did not, the point fails. If she did, the point is not lost because the applicants took no independent steps. The Minister's duty would not fade from view because the applicants did not act. Nor would their right to relief be extinguished. In my view, the suggestions to that effect were a distraction.

Objection to competency 55 The contention of the second and third respondents (although not of the Minister) is that the applicants have no right to bring the present proceedings. The argument does not depend on the same issues as whether they were denied procedural fairness. If the applicants had a right to, but had been denied, procedural fairness, they would clearly have standing to bring the proceedings. 56 The challenge to the standing of the applicants therefore strikes really at their right (if the Minister was not obliged to afford them procedural fairness) to challenge the Minister's decision of 27 February 2012 for error of law. In my view, the applicants do have sufficient standing to argue those matters. 57 A similar view was taken by Whitlam J in Loveridge, who (at 105) referred to observations by Ellicott J in Tooheys Ltd v Minister for Business & Consumer Affairs (1981) 4 ALD 277 at 290; (1981) 54 FLR 421 at 437-438, and statements in Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health (1995) 56 FCR 50; (1995) 128 ALR 238 by Lockhart J at 65-66 and Gummow J at 84, amongst others. A similar approach was also taken by Branson J in Pharmacy Guild (see 472-474). 58 I consider that I should follow those cases. It is not necessary to examine the matter in greater detail in view of my ultimate conclusion that the challenges do not succeed. The objection to competency is rejected.

Errors of law 59 The applicants' argument was that Minister Plibersek in the Reasons given on 13 July 2012 disclosed that she had acted on the basis of errors of law in her understanding and application of each of the elements stated by s 90A(2). 60 First, it was argued that the Minister had wrongly examined whether the Moree community might be left without reasonable access to pharmaceutical benefits by considering whether people would or would not "gravitate" to the Amaroo Drive pharmacy. 61 Secondly, it was argued that the Minister had misunderstood and misapplied the public interest test by considering only the interest expressed by members of the public in a petition with 4,157 signatures supporting the approval of a third pharmacy in Moree. 62 Before those contentions are examined, it is necessary to provide a more detailed explanation of the material before Minister Roxon and Minister Plibersek.

Material before the Minister 63 Evidence was given on affidavit on behalf of the Minister by Anthony James Wynd, an officer in the Minister's department who had been responsible for preparing a Minute to each of the two Ministers to assist to decide how to exercise the discretions concerning the application made by the second and third respondents on 9 September 2011. Mr Wynd was not required for cross-examination. His evidence was not challenged. 64 Mr Wynd first settled a Minute to Minister Roxon concerning whether she might agree to consider the request. The Minute was signed on 11 November 2011 by an Assistant Secretary of the Minister's Department. Amongst the material provided to the Minister at the time were representations in firm terms on behalf of Mr Francis opposing the latest application to the Authority and also the Minister's earlier decision not to agree to consider the earlier request to substitute a more favourable decision for rejection by the Authority of the second application. 65 The Minute explicitly drew the Minister's attention to the fact that the Authority had found that the conditions set out in Rule 107 had not been met and to the two conditions stated in s 90A of the National Health Act which needed to be satisfied before the Minister could substitute a more favourable decision. It was recommended that the Minister not consider the request. Minister Roxon, however, decided to consider the request. 66 In support of their latest application for the exercise of the Minister's discretion under s 90A of the National Health Act, the second and third respondents provided a petition of 4,157 signatures seeking reconsideration of the earlier decision. In an apparent reference to the petition with 4,157 signatures submitted in support of the request, the Minister endorsed the Minute with the following note: Given the high level of public interest I'd like to consider further. 67 In February 2012, Mr Wynd settled a Minute to Minister Plibersek concerning whether she might exercise her discretion to substitute a more favourable decision for that of the Authority. The Minute was signed by the Deputy Secretary of the Minister's Department. This Minute also referred to the non-satisfaction of Rule 107 and the statutory conditions which each needed to be met before the Minister could exercise her discretion in favour of the Mahonys. The Minute drew the following particular matters to the attention of the Minister: 19. The key factors supporting the pharmacists' request are: • the ACPA decision not to approve the pharmacy effectively leaves the Moree and surrounding community with one approved pharmacist servicing the community through two outlets, as both the existing approved pharmacies are owned by the same pharmacist; • the majority of the residents in Moree and surrounding community will not gravitate to the approved pharmacy in Amaroo as there are limited community facilities, services and attractions in that area; • the proposed premises opened in May 2011 and currently trades as an unapproved pharmacy. It is therefore already providing some health services to the community of Moree and its capacity to carry on a business with PBS-approved dispensing could suggest that there is a previously unmet service need now being met by the establishment of this pharmacy; • This could be further inferred by the 4,157 or 43% of the Moree population (or 36.6% of the greater regional population) having signed a petition supporting the approval of the pharmacy to supply PBS medicines (noting also that about 25% of the Moree population is under 15 years old); • The nearest approved pharmacies outside of Moree are located at Warialda, approximately 80 km to the east, and Narrabri, approximately 100 km to the north. • Currently, with two existing pharmacies Moree has a higher than average population to pharmacy ratio than both the rural NSW and national rural averages - 4,865:1 versus 4,232:1 and 4,108:1 respectively; • When the greater catchment area is taken into account this increases to 5,669:1, 34% and 38% above the NSW and national averages respectively; and • Approving this pharmacy would reduce the ratio for the Moree region to 3,780:1, well within the expected levels to sustain another pharmacy in the broader catchment area. 20. In considering whether the community of Moree and surrounding community will be left without reasonable access to pharmaceutical benefits supplied by an approved pharmacist; and approving the application is in the public interest, these factors need to be balanced against the counter arguments of: • there are two existing approved pharmacies servicing Moree and the surrounding community; • these existing pharmacies are open reasonable business hours, with one open 7 days per week and the other 5 days per week, totalling 91 hours per week; and • the existing pharmacies provide a free home delivery service to Moree residents Monday to Friday and emergency deliveries on weekends. 21. It is these grounds of objection that were raised in the comments from existing pharmacists in Moree at the time of the applicants' original application. These are at Attachment C. 68 Amongst the information provided to the Minister in a "Summary of Facts and Evidence" which accompanied the Minute as Attachment B was also the following: 14. The proposed premises are located adjacent to a Woolworths supermarket and a Caltex/Woolworths petrol station. The proposed premises are located at the southern end of the main commercial and shopping precinct of Moree. 15. The Department has found that other businesses operating in the commercial and shopping precinct include Harvey Norman, banks, real estate agencies, restaurants, take-away food outlets, Moree Pharmacy and the Balo Street Medical Centre. 16. Moree is a rural township and there are limited shopping facilities available elsewhere in Moree to satisfy the daily and weekly needs of the resident population. It is therefore most likely that the resident population of Moree would gravitate to the main commercial and shopping area on a regular basis. 69 No recommendation was made in the Minute about whether the Minister should exercise her discretion, or not, to substitute a more favourable decision. On 27 February 2012, the Minister endorsed the Minute - exercising her discretion to approve the Mahonys' application. 70 In Mr Wynd's affidavit, he dealt with a statement in an affidavit by the second applicant, Mr Coleman, that: 17. … we were unable to inform the Minister that the community facilities and commercial attractions in and around the Amaroo Pharmacy are significantly more substantial than she believed them to be. … 71 Mr Wynd said: 21. At paragraph 17 of his affidavit, the Second Applicant refers to various community facilities and commercial attractions in and around the pharmacy at 100 Amaroo Drive, Moree in the State of New South Wales (the Amaroo pharmacy). I acknowledge that the Department, in the Minute signed by the Minister on 27 February 2012 (see Exhibit BMC-4 to the affidavit of Bradley Mathew Coleman, sworn 25 October 2012), did not provide the Minister with details of all facilities and attractions south of the river in Moree. The Minister was provided with a summary of the shops, businesses and attractions in the immediate vicinity of the proposed premises and the Amaroo pharmacy, based on research conducted by the Department. This research showed that the shops, businesses and attractions near the Amaroo pharmacy were relatively limited compared to those in Moree's central business district. 22. The concept of 'catchment areas' for pharmacies has been a regular element of the work of the section. Between the time I commenced in my current role, up to the time of preparing the Minute to the Minister, there were 212 applications under s 90 of the National Health Act which have given rise to issues relating to catchment area. During that period, I attended all of the Authority's monthly meetings at which these applications were considered. Accordingly I have some experience in identifying the types of community facilities, services, attractions and the like, to which people tend to gravitate, and which identify a 'catchment area' for a pharmacy. 23. In my view, based on my experience, the research conducted by the section (which informed the Minute to the Minister) supports the conclusion that the majority of residents in Moree and the surrounding community will not gravitate to the approved Amaroo pharmacy because there are limited community facilities, services and attractions in that area compared to the central business district of Moree.

The Minister's Statement of Reasons 72 After setting out the background, and identifying the Minute dated 23 February 2012 and its attachments, the Statement of Reasons proceeds: Findings on material questions of fact 9. Based on the evidence set out in the 'Minute to the Minister' of 23 February 2012, from David Learmonth, Deputy Secretary, Departmental Executive, I found that there were two existing pharmacies in Moree. These pharmacies are located at 64 Balo Street, Moree and Shop 2, 100 Amaroo Drive, Moree, located 440 metres and 1.9 km by straight line from the proposed premises respectively. 10. I found, based on a map of the town of Moree which identified the location of the two existing approved pharmacies and the proposed premises, colour photographs of the area surrounding the existing approved pharmacy at Shop 2, 100 Amaroo Drive, Moree, and fact sheets on the services and facilities in the area that: a) there is a convenience store, a news agency and a tavern trading nearby, b) the Moree Secondary College and a childcare centre are also located nearby, and c) the Moree Airport is located 2.8 km from this pharmacy. 11. Based on the limited community facilities and commercial attractions near the existing approved pharmacy at Shop 2, 100 Amaroo Drive, Moree, I found that the majority of the residents of Moree and the surrounding community would be unlikely to be drawn, and therefore would not gravitate, to this area. 12. I found that the majority of residents in Moree and the surrounding districts would be likely to gravitate to the central commercial and shopping precinct of Moree. The other existing approved pharmacy at 64 Balo Street, Moree, is located in this central commercial and shopping precinct and therefore the residents of Moree and the surrounding community would be likely to gravitate to this pharmacy. 13. I found that the proposed premises is within close proximity to three medical centres, containing a combined total of approximately nine full time equivalent prescribing general practitioners. 14. I also found that the next nearest approved pharmacy outside Moree is approximately 80 km away. 15. I further found that approving a third pharmacy for Moree would result in a population to pharmacy ratio for the Moree region of approximately 3780:1. The population of the catchment area was a component for some of the Pharmacy Location Rules. Whilst there are no population criteria for the exercising of my power to approve a pharmacy, I am informed by my Department that the development of the criteria for the Pharmacy Location Rules was based on the view that the population to pharmacy ratio to sustain a pharmacy is 3,000:1 in an urban area and 4,000:1 in a rural area. I am further informed by my Department that the population of Moree and the surrounding district would be at least 11,339. 16. I found that a petition of 4,157 signatories was sent to the previous Minister, which highlighted the strong public interest in the approval of an additional pharmacy in Moree. The petition requested that: "the Minister reconsider the application for 'Ministerial Discretion' in the approval of an addition [sic] pharmacy at Shop 2, 215 Balo Street, Moree NSW for the following reasons: 1. Location rule 107's policy intent to create a 'level of competition' is voided as the existing pharmacies are under single ownership. 2. The Moree Plains shire has almost 15,000 persons and two pharmacies, and no rule exists for such a situation and is therefore an "unintended consequence" of the Location Rules. 3. Moree Plains Shire has less access to a pharmacy during opening hours than comparable sized communities in Australia. 4. The (previous) Minister in 2010 set a precedent in Colac on the same principle where Colac has fewer residents and is considerably less isolated." Decision 17. In accordance with subsection 90A(2) of the Act, I decided to exercise my discretion to approve the pharmacists to supply pharmaceutical benefits at Shop 2, 215 Balo Street, Moree, NSW. Reasons for decision 18. The fact that there are limited community facilities and commercial attractions where the existing approved pharmacy at Shop 2, 100 Amaroo Drive, Moree is located, suggests that it is unlikely that the majority of residents of Moree and the surrounding community would gravitate to this Pharmacy. The majority of the residents of Moree and surrounding community would be likely, therefore, to gravitate to the central commercial and shopping precinct of Moree giving access to the only approved pharmacy located in the central commercial and shopping precinct. 19. The community of Moree and the surrounding district has a population of at least 11,339 people. Approving a third pharmacy for Moree would result in a population to pharmacy ratio for the Moree region of approximately 3780:1. The majority of the population would be unlikely to gravitate to the pharmacy at Shop 2, 100 Amaroo Drive, Moree. If I exercised my discretionary power to approve a third pharmacy in Moree, the population to pharmacy ratio for two pharmacies in Balo Street, in the central commercial and shopping district of Moree, would be significantly higher than 3780:1. 20. There are no approved pharmacies located in the towns in the surrounding district of Moree, within a geographical radius of approximately 80 km. 21. The proposed premises is within close proximity to three medical centres, containing a combined total of approximately nine full time equivalent prescribing general practitioners. 22. On the basis of my findings regarding the location of the two existing approved pharmacies in Moree, I was not satisfied that the decision of the Secretary's delegate would not leave residents of Moree and the surrounding community with reasonable access to pharmaceutical benefits. 23. I noted that a petition of 4,157 signatories was sent to the previous Minister, which highlighted the strong public interest in the approval of an additional pharmacy in Moree. This number of signatories equates to approximately 33% of the population of Moree and the surrounding district. 24. Accordingly, I was satisfied that the section 90B request had met the criteria for me to exercise my discretion to approve the request. I note that, in making my decision to approve the two pharmacists I can only do so if I was satisfied that both the 'reasonable access' and 'public interest' criteria of the Act were met. 25. Therefore, I decided to exercise my discretion and approve the request. (emphasis in original)

Reasonable access 73 There appears to be an error of expression in [22]. There is no doubt that the Minister intended to say that she was satisfied that if a third pharmacy was not approved in Moree, the majority of residents would be left without reasonable access because they would have the effective services of only one, and not two, other pharmacies. 74 It is clear that the material provided to Minister Plibersek makes a case both for and against the proposition that the community would be left without reasonable access to pharmaceutical benefits if another pharmacy, in the main commercial and shopping precinct of Moree, was not approved. It was not irrelevant, in my view, that the existing approved pharmacies were under single ownership. It was not irrelevant that relevantly few members of the community would go to the Amaroo Drive pharmacy but would most likely gravitate to the main commercial and shopping area where they would, if a third pharmacy was approved, have an immediate choice between two pharmacies. 75 It was a matter for the Minister's opinion what constitutes a "community" for this purpose (s 90A(3)). It was also a matter for the Minister's opinion what constitutes "reasonable access" to pharmaceutical benefits for the relevant community (s 90A(3)). I can see no error of the kind identified by s 5(1)(e) and s 5(2)(a) or in s 5(1)(f) of the ADJR Act in the Minister's consideration of the requirements of s 90A(2)(a) of the National Health Act.

Public interest 76 The applicants argued that the Minister had misinterpreted the statutory reference to "public interest" in s 90A(2)(b) by equating it with the interest of the public in the outcome of the application. There are elements of the analysis relied upon which give support for the argument. 77 For example, I accept that it appears from the structure of the Statement of Reasons that the "findings" ([9] to [16]) and the "reasons" ([18] to [25]) may be divided between two subject matters. First, at [9] to [15] and then at [18] to [22] the Statement of Reasons addresses the requirements of s 90A(2)(a) of the National Health Act. Then, and separately, at [16] and then at [23] the Statement of Reasons addresses the requirements of s 90A(2)(b) of the National Health Act. There is no other part of the Statement of Reasons that appears to be directed in specific terms to this statutory requirement. 78 Next, there is the language used. In the Statement of Reasons the Minister referred (at [16] and [23]) to the "strong public interest" highlighted by the petition. As a matter of ordinary language the statement made in this paragraph is unexceptional, but it may be accepted that any interest that the public, or members of the public, may have in a particular matter is not to be simply equated with matters which will serve, or suffice, to evidence a public interest in an outcome concerning that matter. 79 However, despite those matters there are features of the Statement of Reasons, and the discussion it contains, which render unavailable any final conclusion that the Minister was diverted from the statutory test, misunderstood it or did not address it. 80 In my view, it is sufficiently clear from the overall structure and content of the Statement of Reasons, and the discussion which it contains, that the Minister and those who advised her understood that the public interest test in s 90A(2)(b) of the National Health Act was an additional test to that stated in s 90A(2)(a). However, that does not mean that the two tests might not overlap, perhaps even to a considerable degree in a particular case. There is no warrant, in that context, for regarding the matters dealt with in paragraphs [9] to [16] and [18] to [22] as remote from consideration of the public interest, or intended by the Minister to be quarantined from the assessment to be made with respect to s 90A(2)(b). 81 The phrase "the public interest" has no fixed and precise content (see Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [75]). In O'Sullivan v Farrer (1989) 168 CLR 210, the High Court said (at 216): the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission (N.S.W.) v. Browning, per Dixon J. (editing in original) (citation omitted) 82 This statement has recently, and repeatedly, been affirmed by the High Court (Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320 ("Osland (No 2)")at [13]; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [30]; Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 87 ALJR 682 at [39], [127]). 83 It would have been incorrect for the Minister to proceed upon the basis that the public interest as referred to in s 90A(2)(b) was satisfied or engaged simply because the public had, or took, an interest in something. However, it may not be said, in my view, that a significant demonstration of public support for a third pharmacy in Moree was "definitely extraneous" to an assessment of whether it was in the public interest for the Minister to personally approve the application made by the second and third respondents on 9 September 2011. Nor, for the reasons given earlier, would it be safe or appropriate to conclude that the Minister did not have in mind the matters also relevant to s 90A(2)(a) when she formed a view about the public interest. 84 In Osland (No 2), French CJ, Gummow and Bell JJ made the following further observations about the proper construction of a statutory condition predicated upon an opinion about something required to be done in the public interest (at [12]): 12 Relevantly to this appeal, the exercise of the power conferred by s 50(4) requires satisfaction of two conditions. The first is the condition that, as a matter of law, the material before the Tribunal is capable of supporting the formation by it of an opinion that the public interest requires that access to the documents should be granted. That condition may also be expressed as a limitation, namely, that the opinion referred to by the sub-section is an opinion which is such that it can be formed by a reasonable decision-maker who correctly understands the meaning of the law under which that decision-maker acts. The second condition is that the Tribunal actually forms the opinion that the public interest requires that access to the documents should be granted. This is an evaluative and essentially factual judgment. If the Tribunal forms the requisite opinion, its power to grant access is enlivened. In the ordinary case, the exercise of the power will be subsumed in the formation of the necessary opinion. (citation omitted) 85 In my view, the material before the Minister was capable of supporting the formation of an opinion that it was in the public interest to approve a third pharmacy in Moree. Furthermore, in my view it is apparent that the Minister did form that opinion. 86 The statutory tests were accurately and plainly stated in the material which was supplied to Minister Plibersek. I am not persuaded that the Minister failed to address the question for attention or took into account an irrelevant circumstance. I am not persuaded that she made an error of law when assessing the public interest.

Conclusion 87 Each of the challenges brought by the applicants has been dismissed. The application should be dismissed with costs. I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

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