PAGONE J
174 This appeal is from a decision by the first respondent ("the Minister") that she was not obliged to afford the appellants with a hearing before deciding a request by the second and third respondents ("the Mahonys") under s 90A of the National Health Act 1953 (Cth) ("the Act"). The appellants contend that they were entitled to be heard before the first respondent ("the Minister") decided the request the Mahonys had made under s 90A. The appellants also contend that the Minister erred in the interpretation of the expressions "a community being left without reasonable access to pharmaceutical benefits" and "in the public interest" in ss 90A(2)(a) and (b) of the Act when deciding the Mahonys' application in their favour.
175 The Mahonys are pharmacists who had approval under the Act to supply pharmaceutical benefits from premises at Calala. In 2010 and 2011 they made six unsuccessful applications under s 90 of the Act to "relocate their approval from Calala to premises in Moree". The scheme administered under the Act contemplates relocation, as does, specifically, Item 107 of Schedule 1 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2006, but the formal mechanism for relocation is effected by (a) requesting the secretary to cancel an existing approval under s 98(1) and (b) seeking a new approval under s 90 or s90A. On 16 May 2011 the Mahonys had opened a pharmacy business at 2/215 Balo Street Moree and sought to have those premises approved from which to supply pharmaceutical benefits. Those applications fell to be determined by reference to Item 107 of the 2006 Rules which, amongst other conditions, required that the catchment area for the proposed premises contain only one approved premises. The catchment area, however, was found to contain two existing approved pharmacies in Moree which had both been owned by a Mr Francis. One was located at 64 Balo Street Moree, about 440 metres from the business of the Mahonys, and the other was located about two kilometres away at 100 Amaroo Drive Moree. The Mahonys had unsuccessfully argued that the single ownership of the two existing pharmacies should be treated as being only one pharmacy within the relevant catchment area for the purposes of Item 107 with the consequence (had the argument succeeded) that the Mahonys' application would not have been prevented by Item 107. The Mahonys' failure of their application next led the Mahonys to seek a favourable exercise by the Minister of the discretion under s 90A(2) by request made on 9 September 2011. On 1 November 2011 Mr Francis sold his two pharmacy businesses to the appellants. On 29 November 2011 the Minister decided to consider the request which the Mahonys had made under s 90A to substitute a different decision, and on 27 February 2012 the Minister decided the request in favour of the Mahonys under s 90A. A statement of reasons was provided by her on 13 July 2012 during the course of these proceedings at first instance. The appellants complained that neither they, nor Mr Francis, had been given an opportunity to be heard on the request under s 90A by the Mahonys to the Minister.
176 Part VII of the Act establishes a scheme for the subsidy by the Commonwealth for the provision of pharmaceutical benefits. Section 90(1) empowers the Secretary to approve the supply of pharmaceutical benefits at particular premises subject to the other provisions of s 90. The Secretary, since 1990, has been required to refer applications under that section to the authority now known as the Australian Community Pharmacy Authority: see Pharmacy Restructuring Authority v Chatfield (1993) 43 FCR 418, 429, 433-4; Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287, 293-4. Section 99K provides that the function of the Authority is to consider applications under s 90 and to recommend whether or not an applicant should be approved by the Secretary under that section in respect of particular premises or whether any conditions should be attached to approval. The authority is required, by s 99K(2), in making recommendations, to comply with the relevant rules determined by the Minister under s 99L. The National Health (Australian Community Pharmacy Authority Rules) Determination 2006, which contained Item 107, had been made by the then Minister under s 99L(1) and were, therefore, required to be taken into account by the Authority.
177 That scheme was modified in 2006 to give effect to a provision in the fourth community pharmacy agreement made between the Commonwealth and the Pharmacy Guild of Australia. The agreement contemplated that the Minister could substitute a decision of the Secretary where that decision resulted in an unmet community need for pharmacy services. Section 90K gives effect to that agreement and applies where the Secretary has rejected an application made under s 90 after 1 July 2006 on the basis that the application did not comply with the requirements of the relevant rules determined by the Minister under s 99L. The criteria for the Minister to substitute a decision for that of the Secretary is found in s 90A(2) and (3) which provide:
(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.
Section 90A(4) provides that the power given to the Minister under s 90A(2) may only be exercised by the Minister personally and only on the request by a pharmacist under s 90B. The latter provision gives a pharmacist a right to request the Minister to exercise the power under s 90A(2) if s 90A applied to a decision made by the Secretary under s 90 rejecting the application by a pharmacist.
178 The principal claim by the appellants is that they were entitled to be heard in the Minister's consideration of the application which had been made by the Mahonys under s 90A. The primary judge held that the appellants were not entitled to be heard in the application under s 90A made by the Mahonys and gave four reasons for that conclusion. The first was that the existence of a discretion in s 90D for the Minister to give notice and invite comments, information or documents relevant to a request made by a pharmacist under s 90A indicated that the legislature intended to exclude a right for a stranger to an application to be heard in applications under s 90A. The second was the existence of an established line of authority to the contrary of the appellants' contention. The third was that recent decisions suggesting the existence of a duty to be heard provided no foundation for distinguishing earlier binding authority. Finally, that the decision of the Full Court in Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589 was indistinguishable and binding upon him.
179 The appellants accepted the correctness of the decision in Martin's case but contended that it was distinguishable and that it did not apply to the Minister's consideration of the request made under s 90A by the Mahonys. The Full Court in Martin had decided that the Pharmacy Restructuring Authority was not obliged by the principles of procedural fairness to notify and hear a pharmacist in considering the application by another pharmacist for relocation under s 90(1). The Court said 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.
The appellants do not contend that the decision in Martin should not be followed, or that the passage quoted above is an incorrect statement of the relevant principle, but, rather, that what was decided and said in the context of s 90 did not apply in relation to s 90A by the Mahonys.
180 In Martin the pharmacist who was seeking to be heard was held not to have a right to be heard in the application which had been made by another pharmacist because the former had only an economic interest in the outcome of the other pharmacist's application. In that context the Court refused to hold that the authority had an obligation to notify or hear a non-party to an application for approval. That reasoning applies with equal force to an application under s 90A and is consistent with the view adopted in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 which was concerned with the sufficiency of an interest to give standing to sue.
181 The appellants contended, however, that their interest was greater than a merely economic interest because, they contended, they had statutory entitlements to conduct pharmacies that prevented the Mahonys from obtaining approval under s 90. The appellants' position in that regard was initially referred to in argument as a "pre-emptive right", but it was correctly conceded by counsel for the appellants that they did not have an entitlement to pre-empt or prevent the Mahonys from obtaining the approval they sought by a favourable exercise of discretion under s 90A. The position of the appellants was, rather, that their entitlement to supply pharmaceutical benefits from their premises in Moree carried with it a consequence for others by operation of Item 107, but that the consequence was not part of the bundle of rights exercisable by the appellants as against any applicant for approval under the Act.
182 The circumstances in which a stranger to the application of another has the right to be heard in that application depends upon a careful consideration of the interest of the stranger. The right to afford procedural fairness is not limited to a person who can show that a legal right may be adversely affected by a decision in favour of another, but may extend to other interests, not amounting to legal rights, which may be affected by the decision. The majority in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 said at 658-9:
In Kioa v West Brennan J observed and, with respect, we agree:
"The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation."
Earlier in those reasons, Brennan J had said:
"There are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice. It is hardly to be thought that a modern legislature when it creates regimes for the regulation of social interests - licensing and permit systems, means of securing opportunities for acquiring legal rights, schemes for the provision of privileges and benefits at the discretion of Ministers or public officials - intends that the interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy should be accorded less protection than legal rights."
Brennan J also made the specific point that the interests which the exercise of a power of deportation are apt to affect are such as tend to attract the protection of the principles of natural justice.
The Act in its present form reflects a legislative awareness of what was decided in Kioa v West. This is apparent from provisions (eg, ss 51A, 357A, 422B) which specify what is said to be an exhaustive statement of the requirements of natural justice, and those (eg, ss 500A(11), 501(5), 501A(4)) which specify that the rules of natural justice do not apply to certain decisions.
In Kioa Brennan J also stated his agreement with the proposition that the interest which tends to attract the protection of the principles of natural justice may be equated with the interest which, if affected, gives "standing" at common law (and, one might add, in equity), to seek a public law remedy. This relationship is illustrated by the point made in the Offshore Processing Case that each plaintiff had a real interest in raising the questions to which the declaratory relief went. It may be added that the term "standing" is but "a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies". Further, in federal jurisdiction, questions of standing are subsumed within the constitutional requirement of a "matter". The present cases, of course, engage the exercise of federal jurisdiction.
(Footnotes omitted).
These passages draw attention to the importance of the identification of the interest relied upon in a claim by a stranger to be heard on an application by another, and that there is not an exact correlation between an interest which will be sufficient to give a person standing to sue to enforce a public duty and an interest which will be sufficient to give rise to an entitlement to be heard. In Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 a majority of the court expressed the view at 266 [48] that "the circumstance that [a] plaintiff conducts commercial activities in competition with those which it seeks to restrain is not necessarily insufficient to provide it with a sufficient interest in the subject matter of the action" which it had commenced. In that case the court held that the Aboriginal Community Benefit Fund had an interest to ensure that the activities of Bateman's Bay Local Aboriginal Land Council observe statutory limitations. In that case the potential of severe detriment to the business of the fund was the special interest they had in ensuring that the Land Council observed the statutory limitations which had been imposed. However, it does not follow that a potential adverse impact of a decision in favour of a person upon the business of another person carries with it a right of the latter to be heard in an application by a potential competitor in the competitor's application for a licence.
183 The interest of the appellant in this case is the authorisation to supply pharmaceutical benefits from two premises in Moree. That interest is unaffected by the grant of approval to the Mahonys, or to any other person, except to the extent that the supply of pharmaceutical benefits by others might have an economic impact upon the profits which may flow to the appellants directly from the supply of pharmaceutical benefits or indirectly from the supply of other products from their premises. The protection of their commercial interests is not within the scope and purpose of the Act or of the Scheme established by Part VII of the Act. The Full Court in Martin observed that the relevant provisions were 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. The introduction of s 90A has not altered the correctness of that view, nor is s 90A itself directed to promoting, limiting or in any way concerned with, the competitive supply of pharmaceutical benefits as between competitors. The purpose of s 90A can be seen from the matters the Minister is to be satisfied about before making a decision under s 90A(2), namely, whether the adverse decision by the Secretary under s 90 resulted in a community being left without reasonable access to pharmaceutical benefits supplied by an approved pharmacist and that it is in the public interest to approve a pharmacist seeking approval. The power conferred by s 90A(2) is designed to further the objects of the scheme in the Act by ensuring reasonable access to pharmaceutical benefits in the public interest and operates where the scheme is found to be inadequate by reference to the only two criteria stated in the provision: neither is concerned with the economic or commercial interest of an existing approved pharmacist whose economic interest might be affected by approval of another pharmacist within the same catchment area.
184 The rights conferred upon an approved pharmacist, such as the appellants, do not include a right to exclude any other pharmacist seeking approval under s 90A. The rights given to the appellants were no more than the rights to supply pharmaceutical benefits from specified premises and did not include any right that anyone else be excluded from approval to supply pharmaceutical benefits from any other premises. The Act is concerned not with the regulation of economic interests but with the orderly supply of pharmaceutical benefits attracting the subsidy paid by the Commonwealth. His Honour was, therefore, correct to apply the decision of the Full Court in Martin and not to apply the reasoning of Jessup J in Yu v Minister for Health (2013) 216 FCR 168 or of Jagot J in Hanna v Minister for Health [2013] FCA 303 to the extent that they might be thought to have departed from the decision in Martin.
185 The facts and issues in Yu were, however, quite different from those in Martin, and from those in this appeal, because of the unusual circumstances considered in Yu which had been brought about by the commencement of the 2011 Rules. In that case the pharmacist seeking to be heard in the application of another was a pharmacist whose statutory right would have been wholly extinguished if the other application by the other pharmacist was successful. His Honour explained at [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.
The interest in question of the applicant in Yu was, therefore, the statutory right to supply pharmaceutical benefits which would wholly disappear if the application of the other pharmacist succeeded. That interest was a statutory right which would be lost if the application of the other pharmacist succeeded. That is not the same as the position of the appellants in this case whose statutory right to supply pharmaceutical benefits at their premises would not be affected in any way (other than from the potential economic impact on a competitor) by an approval given by the Minister to the Mahonys. The interest of the appellants, unlike that in Yu, had only an economic source.
186 The primary judge was also correct not to apply the broader propositions said to have been enunciated by Jagot J in Hanna to the extent that her Honour considered at [49] that the decision in Yu had been more broadly "conditioned on the observance of procedural fairness". Yu is not authority for the proposition that s 90A(2) is so conditioned but, more narrowly, that in the circumstances arising in Yu the Minister was obliged to hear a pharmacist whose statutory approval would necessarily be lost if the Minister approved an application of another pharmacist. It was the particular circumstances in that case that gave the applicant in Yu and interest that required the Minister to hear the pharmacist as a stranger in another's application and not because there was to be implied into s 90A(2) a general requirement that any pharmacist whose economic interest might be affected by the approval of another pharmacist be heard in the latter's application under s 90A(2).
187 It is, therefore, unnecessary to consider the errors of law which the appellants alleged were revealed by the Minister's decision. The primary judge, however, considered it desirable to say something about those submissions and it may be desirable to take the same course in these reasons.
188 The appellants submitted that the reasons given by the Minister for her decision disclosed error in respect of each of the two matters she was required to take into account in the exercise of the power under s 90A. The Minister's reasons for her decision, and the material facts found by her, were set out as follows:
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).
The appellants contended that these reasons disclosed (a) that the Minister had erred in concluding that the failure to approve the application by the Mahonys would result in a community being left without reasonable access to pharmaceutical benefits, and (b) that the Minister had erroneously equated "public interest" with the extent to which the public had become interested in the outcome of the application by the Mahonys.
189 The first of these errors was said to be revealed from the failure by the Minister to have identified how the community she referred to would be left without reasonable access to pharmaceutical benefits by reason of the Secretary's decision not to approve the application by the Mahonys. The appellants contended that the state of satisfaction required by s 90A(2)(a) could not have been reached by the Minister on the facts found because the only community she identified had also found by her to be able to access pharmaceutical benefits from the existing pharmacies conducted by the appellants. Those facts, however, were not the only facts found by the Minister in reaching the decision that the rejection of the application by the Mahonys under s 90 would leave the community without reasonable access to pharmaceutical benefits. The Minister, on a fair reading of her reasons, took into account the existing access to pharmaceutical benefits from the existing pharmacies conducted by the appellants as a matter which properly bore upon whether there was reasonable access to pharmaceutical benefits by the community in Moree. Whether the existing access was reasonable was, however, a matter for the Minister. She took into account additional factors, all of which bore upon reasonability of access for the community which was described in paragraph 19 of her reasons as "[t]he community of Moree and the surrounding district" which had a population of at least 11,339 people. The Minister took into account the fact that the majority of the population in that community would be unlikely to gravitate to the pharmacy at shop 2, 100 Amaroo Drive, Moree and that a favourable exercise of discretion under s 90A(2) would have the effect of improving the ratio of population to pharmacy for what would then become two pharmacies in Balo Street. In her judgment the reasonability of access depended upon the fact that a population of the size of Moree and surrounding districts would otherwise have access to, in effect, only the one pharmacy in the central commercial and shopping district. There is no reason to conclude that those were matters irrelevant to a proper consideration of whether the community would be deprived of reasonable access in light of the size of population.
190 The submission that the Minister incorrectly equated "public interest" in s 90A(2)(b) with the extent to which the public had become interested in the issue placed emphasis on the words in [23] of the Minister's reasons. It is clear, however, that the Minister's reasons did not focus upon the extent to which the public had expressed an interest in the issue as a sufficient fact to determine the public interest criteria in s 90A(2)(b). What was considered relevant by the Minister was, rather, such matters as were conveyed in that expression of interest, such as the absence of any effective choice between suppliers of pharmaceutical benefits within the community. In any event, the extent to which the public had become interested in the application is not excluded from the criterion of public interest in s 90A(2)(b). The phrase "the public interest" has, as his Honour the trial judge correctly observed at [81], no fixed or precise content: see Osland v Secretary, Department of Justice (2008) 234 CLR 275, [57]; O'Sullivan v Farrer (1989) 168 CLR 210, 216. The extent to which the public had become interested in the issue was a relevant factor which the Minister could take into account but it cannot be said on a fair reading of the reasons to be the only criteria taken into account by her.
191 Accordingly, I would dismiss the appeal with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.