4.2 Meaning of "primary health care"
90 I did not understand the applicant to suggest that "primary health care" was a term unknown to those involved in public health policy. If that suggestion was made, it would be inconsistent with the evidence. The applicant's point was that there was no single and clear meaning given to the phrase in the public health policy context in Australia at the priority date or subsequently.
91 To avoid repetition, where possible, the observations below apply both at the priority date and subsequently, unless it is clear from the context that a specific date is involved.
92 I do not consider that much weight can be given to the applicant's argument about ambiguity. It is apparent from the evidence that the phrase "primary health care" has a core meaning to those involved in public health policy in Australia, and has done so for many years before the priority date (at least since the Alma-Ata Declaration in 1978) which is not in dispute, being first level or first contact health care. The evidence also disclosed that in public health policy, internationally and in Australia, the scope or reach of the phrase is not settled. Debate about the scope or reach of a phrase does not mean that the phrase lacks (or at the priority date lacked) an ordinary signification to those involved in public health policy in Australia. The core meaning of the term is, and since at least 1978 has been, first level or first contact health care. The contradistinction which the term draws in this context, as understood by those involved in public health policy, is between the first point of contact between a person and a health care provider and other points of contact, often referred to as secondary and tertiary health care, it being generally understood in this context that primary care is provided (for example) by GPs, secondary care involves (for example) a referral to a specialist, and tertiary care is provided by hospitals and similar institutions.
93 While the applicant pointed to many differences of expression in the evidence regarding the description of "primary health care", it failed to recognise the consistent references to the core meaning of first level or first contact health care. The applicant focused instead on the concepts at the outer edges of the possible meaning of the phrase which were not necessarily agreed to form part of the meaning of the term - such as whether primary health care extends to safe water and food supplies and other social goals. The applicant said, for example, that the concepts included within primary health care:
appear to range from access to, or first contact with, the health system to community based, social health initiatives including prevention and health promotion as well as the holistic organisation of care in the community which goes beyond the first level of care to referrals or links to other parts of the health and welfare systems.
94 However, virtually all (and perhaps all) examples in evidence disclosed that, whatever else the phrase might also mean, it was commonly accepted that in the public health policy context, primary health care means (and meant at the priority date) first contact with the health system and thus first level health care. It may be accepted that many health policy documents went further and extended primary health care to a multiplicity of other socio-economic objectives. None suggested that the phrase did not mean, at the least, first contact with the health system/first level health care. There is (and never has been) any ambiguity or disagreement about this core meaning. Nor has there ever been any question that it is GPs who provide the bulk of primary health care in Australia.
95 Accordingly, and by way of example only:
(1) The 1978 Alma-Ata Declaration states that primary health care "is the first level of contact of individuals, the family and community with the national health system".
(2) One of the many documents produced by the Primary Health Care Standing Committee to the General Practice Partnership Advisory Council (a successor to the Primary Health Care Task Force), a body involved in advice to the Australian Health Ministers Advisory Council, referred in 2002 to earlier work dating from the late 1990s. The 2002 document noted that primary care and primary medical care are important parts of the primary health care system and that primary care "is commonly taken to mean first contact care". The document also noted that:
A working definition of primary health care used in most Australian reports is:
Primary health care seeks to extend the first level of the health system from sick care to the development of health…
The document also said that the Alma-Ata Declaration meaning, which involved the concepts of both a first level of care and an approach to health care, had been "reinforced in recent Australian reports".
(3) In 2008, the Australian Institute of Health and Welfare, operating under the auspices of the Commonwealth Department of Health and Aging, released a report titled Review and Evaluation of Australian Information about Primary Health Care. This report described general practice as the central component of Australia's primary health care system. The report continued:
What is primary health care?
Primary care is the care that people around Australia receive from general medical and dental practitioners and Indigenous health workers (and the nurses that work with them) as well as from local pharmacists and other allied health professionals working 'in the community' (as opposed to those working in hospitals or other institutions). It is called primary health care because it is usually more basic and first-line than the care given by other parts of the health system, such as hospitals and specialist doctors. It is also primary in the sense that the health professionals involved are usually the first point of contact that Australians have with the health system. The DoHA, in its report General practice in Australia: 2004, define primary health care as:
'… health care provided by the medical professional with whom the patient has initial contact. The category excludes hospital or institutional care and rehabilitation.' (DoHA 2005).
(4) The Commonwealth Department of Health and Aging released a discussion paper also in 2008 titled Towards a National Primary Health Care Strategy. This paper said:
Primary health care is the frontline of Australia's health care system. While many Australians may not recognise the term 'primary health care', it is a term used to refer to the parts of the health system that most people interact with most of the time. For example, around 18 million Australians see a GP at least once a year.
In addition to GPs, primary health care services involve a range of health care providers including nurses (such as general practice nurses, community nurses and nurse practitioners), midwives, allied health professionals, pharmacists and dentists. In Australia, primary health care is delivered through a combination of publicly and privately provided services (funded through Commonwealth, state and territory, and private arrangements, including through private health insurance funding).
This Discussion Paper is not based on a precise definition or boundary for what should, or should not be, considered as 'primary health care'. While there are a number of definitions available, including from the World Health Organisation and the Australian Primary Health Care Research Institute, in practice there is no absolute or consistent view about whether particular settings and services are part of primary health care or not. At this stage, and to allow for Submissions to address possible future directions without being unduly constrained by current service and funding arrangements, the scope of primary health care is left broad.
(5) The Department next released, in 2010, Australia's First National Primary Health Care Strategy titled Building a 21st Century Primary Health Care System which said:
The Strategy takes a broad view of comprehensive primary health care extending beyond the 'general practice' focus of traditional Australian Government responsibility. It includes consideration of services which until now have been predominantly the responsibility of the states and territories, and those services entirely delivered through private providers, including those supported by private health insurance.
(6) The ACT Government's Primary Health Care Strategy 2006-2009, published in 2006, referred to the Alma-Ata Declaration including the reference to first contact with the national health care system. This document also referred to primary health care as "usually the first point of contact had with the health care system". Similar references appear in the ACT Government's Primary Health Care Strategy 2011-2014.
(7) The Tasmanian Government had issued a discussion paper in 2006 titled A Primary Health Strategy for Tasmania and a Primary Health Services Plan issues paper in 2007, the latter of which also referred to the text of the Alma-Ata Declaration including the reference to first contact with the national health care system. The Primary Health Services Plan for Tasmania was then released in May 2007 which adopted the Alma-Ata Declaration definition.
96 The respondents summarised the steps involved in the initiatives of the Commonwealth in primary health care from 2008 onwards, which shows the concerted public efforts made to increase the efficiency of the primary health care sector. Importantly, this policy initiative started and involved a call for public submissions before the priority date. It should not be thought, however, that "primary health care" first entered the vocabulary of health professionals only in 2008. The 2008 policy initiative took it as a given that health professionals knew what was meant by primary health care. The timetable is as follows:
• 11 June 2008 Hon Nicola Roxon MP, Minister for Health and Aging, announced that the Rudd Government will develop a National Primary Health Care Strategy;
• 30 October 2008 National Primary Health Care Strategy Discussion Paper: Towards a National Primary Health Care Strategy; and
Media release, Minister Roxon: Key Step Towards Better Primary Health Care (call for public submissions);
• mid 2009 Primary Health Care Reform in Australia - Report to Support Australia's First National Primary Health Care Strategy; and
Draft National Primary Health Care Strategy - formulated by the External Reference Group appointed by Minister Roxon;
• 2010 Building a 21st Century Primary Health Care System - Australia's First National Primary Health Care Strategy ;
• Feb 2011 Improving Primary Health Care for all Australians (information brochure);
• 6 June 2011 Media release by Minister Roxon: First Medicare Locals to Continue Primary Health Care Reform.
97 Individuals involved in public health policy also assumed a common understanding of the core meaning of the phrase "primary health care". In written submissions, the applicant gave examples of meaning given to the term by a number of witnesses, which was said to disclose the inconsistency of use. A fair reading of the same evidence, however, in fact discloses the consistent core meaning of first level or first contact health care. Accordingly (with the core meaning shown in bold below):
(1) Dr Hobbs, Principal Medical Adviser to the Commonwealth Department of Health, said primary health care means:
socially appropriate, universally accessible, scientifically sound first level care provided by a suitably trained workforce supported by integrated referral systems and in a way that gives priority to those most in need, maximises community and individual self-reliance and participation and involves collaboration with other sectors.
He first encountered this meaning as an undergraduate medical student at the University of Sydney between 1976 and 1980 and was aware of the Alma-Ata Declaration when it was published in 1978. Over the last 20 to 30 years, he has encountered the phrase, used in this sense, almost daily when a GP, when working in hospitals, and when working for government. He spent 23 years in general practice.
(2) Dr Connors, General Manager of Top End Health Services for the Northern Territory (NT) Government, said primary health care means "the holistic approach and delivery of effective first line health services to a population or community in a community setting" and involves good health care treatment, "but it also involves broader concepts of prevention and improving access to care." She first encountered the phrase in the late 1980s while working for the NT Department of Health.
(3) Ms Harpur, Chief Executive Officer of Public Health Services Division of the Tasmanian Department of Health and Human Services, understands the phrase to mean "the first point of contact with the health system" and:
relates to ensuring a level of healthcare for people, not only through diagnosis and treatment programs but also through preventative measures such as the promotion of health in communities and with defined populations…[and] often involves reaching out to people and coordinating continuous care with them in regard to their own health and of their family members.
She first heard of the term while in the UK in about 1996 (she was working for the National Health Service) and has since heard the phrase, used in this sense, almost daily within all levels of government, community based organisations and services, and private practitioners.
(4) Ms Burke, who is an Associate Director within the NSW Ministry of Health, understands the phrase to have the meaning set out in the Alma-Ata Declaration, being a phrase which includes, but is broader than, "primary care" which is the "first level of contact" and typically refers to GPs, but may also include nurses, physiotherapists or some other health care service providers. She has had this understanding since at least 2008 when she began to work within the Ministry and has heard the phrase so used within and outside of the Ministry including at conferences attended by GPs.
(5) Ms Cowan, a Director within the South Australian Department for Health and Ageing Service, understands the phrase to mean:
the first point of contact for most people in the Australian health care system. Primary health care comprises of a range of providers including general practice, non-Government organisations, and community based clinicians such as private allied health and pharmacy who work together to manage and maintain the health of the community through prevention, promotion, treatment and care. Primary health care refers to the broad sector of the health system that manages people who are well, at risk of illness or in the less acute stages of illness.
This is as opposed to the acute sector, which focuses on acute illness mainly treated in the hospital setting. She has frequently encountered the phrase, used in this way, since 2004 when she started working in the health sector.
(6) Dr Geelhoed, the Chief Medical Officer of Western Australia, understands the phrase to mean "the health care services provided outside hospitals and…the links between health professionals in providing such services." He referred to various documents of the Western Australia Government including the WA Primary Health Care Strategy - consultation document (published in 2011) which states at p 6:
What is primary health care?
The Commonwealth Government, in its Primary Health Care Reform in Australia: Report to Support Australia's First National Primary Health Care Strategy, (Australian Government Department of Health and Ageing, 2009 #99) describes primary health care as "all health care services provided outside the hospital, with linkages between these health professionals and the services provided by specialists and consultant physicians also being an important consideration …"
The Australian Primary Health Care Research Institute defines primary health care as: "Socially appropriate, universally accessible, scientifically sound first level care provided by a suitably trained workforce supported by integrated referral systems and in a way that gives priority to those most in need, maximises community and individual self-reliance and participation and involves collaboration with other sectors. It includes the following:
• health promotion
• illness prevention
• treatment and care of the sick
• community development
• advocacy and rehabilitation."
Primary health care is provided by an array of people, including general practitioners, community health nurses, pharmacists, allied health professionals and many other providers across the local, state and Commonwealth government sectors, non-government organisations and the private sector.
WA Health believes that primary health care when effectively integrated with hospital services, creates a more equitable and seamless health care system.
Dr Geelhoed has heard the term used in this way since 1976. He described the use as frequent in clinical, academic, management and government settings.
(7) Dr Young, Chief Health Officer of Queensland, noted that:
11. The term 'primary health care' first appears in Department records in the paper titled 'Primary Health Care' prepared by the Department of Health in February 1993. The 1993 paper contains definitions of the term 'primary health care' and description of principles endorsed by the Department as underpinning a primary health care policy services. The policy states that 'primary health care' is best understood as both a level of service provision and an approach to the organisation and provision of health care.
12. The 'approach' aspect is represented as a coherent set of values from which the managers of health systems, members of their professions and members of the community can make decisions about resource allocations, planning and service delivery.
13. The policy also refers to 'primary health care' being a level of service provision, including services which provide the first level of contact with the health system for people in local communities in order to ensure access to:
a. treatment of basis health problems;
b. support and rehabilitation services to adequately maintain the aged, disabled and chronically ill;
c. health information and health promotion services; and
d. services to facilitate the healthy community environments.
She has encountered the use of the term in this way since 1986 in a variety of forums, clinical, academic, managerial and governmental.
98 In addition to these individuals (to which the applicant referred) may be added the following:
(1) Dr Brook, formerly an Executive Director within the Victorian Department of Health and Adjunct Professor of Medicine at Deakin University, has known of the phrase since 1978 while working in various clinical and health administration positions. He considers the term is one which is prominently used in health care in Victoria and referred to its use in publications from 1997 onwards. Those publications define primary health care as (for example) the part of the health system people contact when seeking assistance with a health problem (1997) and the first point of call for most people who need assistance (1999).
(2) Mr O'Donoghue, an Executive Director within the ACT Government, referred to publications from the ACT referring to the phrase since 2002 which identified primary health care as a crucial part of health services within the ACT. As noted, strategy documents of the ACT from 2006 refer to primary health care as the first contact point between an individual and health care system. Mr O'Donoghue said he had encountered the term frequently since 1990.
(3) Professor Harris, who was called by the respondents as an expert witness, is the Foundation Professor of General Practice (since 1990) and Executive Director of the Centre for Primary Health Care and Equity (since 2003) at the University of New South Wales. Professor Harris said that the three levels of health services (primary, secondary and teaching hospitals as tertiary) was a concept introduced in the UK in the 1920s as a result of the "Dawson report" (the report to the Parliament of Lord Dawson of Penn). The Dawson report itself referred to primary health care as the first level of contact of individuals (etc) with the national health system. This report was referred to in the Alma-Ata Declaration which also refers to primary health care as the first level of contact of the individual with the national health system. According to Professor Harris:
Based on my qualifications, experience and expertise outlined above and in my curriculum vitae…and my review of the literature from the relevant time period referred to above, by 1994, I am of the opinion that "Primary Health Care" was a broad term which was used in the literature to denote a segment or level of health care which most people use and a broad approach towards equity of access, prevention and health promotion and community participation and engagement.
…
As a result of my qualifications, experience and expertise referred to above and my review of the literature during the relevant time period referred to above, I understood the term "primary health care" as at 6 October 2009 to mean a segment or level of health care which most people use and a broad approach towards equity of access, prevention and health promotion and community participation and engagement. This reflects my understanding of the literature and its common use by researchers and practitioners in Australia and internationally. It is my view that the opinions expressed in the literature and my view were also held by general practitioners and others in the health sector as at 6 October 2009. This is based on the publication of the terms in journals and other documents widely read by health professionals in Australia and promoted by governments.
There is no real doubt that when speaking about a level of health care Professor Harris considered that primary health care means, and has meant for many decades, first level health care. Similarly, when an approach to health care is involved, primary health care means, and has meant for many decades, achieving a range of socio-economic goals through the provision of first level health care and a range of other services seen as complementing first level health care.
99 Having regard to these matters, I do not accept that the applicant's submission, that there is no "singular or clear meaning" of the descriptive phrase "primary health care", is correct. It is and for many decades has been clear to those involved in public health policy, that "primary health care" means (at least) first level health care or the health care received as a result of the first contact between an individual and a health care system. The fact that the phrase also means more than this is immaterial. The phrase has an ordinary signification to those involved in public health policy in Australia and that signification is that part of the Australian health care system which provides first level health care, being the health care received as a result of the first contact between an individual and a health care system (or, in shorthand, first level or first contact health care). This was (and is) understood to include, but not be limited to, the health care provided to people by GPs. In other words, there has never been any doubt that, to those involved in public health policy in Australia, GPs provide primary health care.
100 Thus far I have confined my observations to the area of public health policy. The applicant's case appeared to rest on a belief that there exists a clear dividing line between what it characterised as the "narrow" area of public health policy and the broader provision of clinical services. I do not consider that this distinction will bear too much weight. Although I am prepared to accept that some people working within health care have a focus on public health policy issues, in one sense, all GPs in Australia (if not all nurses, physiotherapists and others providing the first level of health care) work within the public health sector and thus are, to some extent at least, concerned with public health policy. To take GPs as the most prominent example (it being the case that the medical centres operated by the applicant or Idameneo are centres from which GPs work), the other health professionals being allied to or supportive of that central service, it is plain that to describe a GP as being in "private practice" is an incomplete description because the Australian health care system means all GPs are trained within, regulated by and routinely interact with the national (that is, public) health care system.
101 I also do not find persuasive the applicant's attempts to dismiss the documents relied upon by the respondents about the well-known and well understood meaning of primary health care in the health care sector as few in number and inconsistent in substance. They are documents issued from the bodies that are in charge of health care services and are thus fundamental to the functioning of medical professionals in Australia. While some GPs, like Dr Gilroy, might be too busy to take any notice of government policy (as to which, see below), these documents are central to the way in which GPs function within the health sector. Even a GP jaded by constant changes of government position (which the evidence disclosed was not uncommon) does not function in a vacuum. The nature of health care, which is affected by government policy at every level and in every way in Australia, makes this impossible.
102 In any event, a number of the witnesses referred to above have been GPs (such as Dr Hobbs) or frequently interact with GPs as part of their work. Moreover, these witnesses did not consider their understanding of primary health care to be one which applied only within the area of public health policy. Their experience of the use of the phrase extended beyond that into both academic and clinical settings. While I accept that a person cannot generally give evidence about another person's state of mind, the evidence of these witnesses, the overall effect of which was that they frequently heard the term used in these contexts and in a way which accorded with their understanding of the term, indicates that the applicant's contention that "primary health care" is a recent invention confined to those involved in public health policy is a fallacy.
103 What is the relevance then of the fact that these witnesses had also heard of the applicant (albeit from different times depending on when they had started working in the health sector) and understood the applicant to operate medical centres? The effect of their evidence was that, depending on the context, they would understand when the words "primary health care" took the meaning as set out above and when it was intended to refer to the applicant as a corporate entity. For present purposes, it is sufficient to observe that this does not affect the fact that the ordinary signification of the phrase was (and is) as described above.
104 Turning now to the evidence of the GPs on which the applicant relied (on the applicant's case, the sole proposed audience of the use of the marks - a proposition which I do not accept given the nature of the Services):
(1) Dr Stiebel understood the phrase to mean either the applicant as an entity which owns medical centres or first level health care (that is, consistent with the core meaning as set out above). He thought the meaning of first level health care had begun to be used in Australia in the last 5 to 8 years (his affidavit being dated June 2010). In other words, he believed the meaning of first level health care existed since about 2002 to 2005 in Australia.
(2) Dr Selim, who moved to Australia in 1996, has worked at what she described as Primary Health Care's (meaning the applicant's) medical centres. She was not aware that the Australian General Practice Network Limited or the Divisions of General Practice used the phrase "primary health care" but understood the words "primary health care" to mean an initial level of medical care and "Primary Health Care" to be a reference to the applicant.
(3) Dr Monk is a GP and recruits other GPs to work in the applicant's medical centres. While most GPs had not heard of the applicant when he started in 1999, according to Dr Monk, it is his experience that most GPs he now speaks with have heard of the applicant. Dr Monk does not say whether he understood the phrase to have any meaning apart from being a reference to the applicant in its capacity as the operator of medical centres.
(4) Dr Rogers associates the phrase with the applicant and has done so since about 2005 when a colleague joined "Primary Health Care's medical practice, the Primary Old Port Road Medical & Dental Centre". He does not say whether he understood the phrase to have any meaning apart from being a reference to the applicant.
(5) Dr Rajendran, who has had discussions with the applicant about joining one of its medical centres, also associates the phrase with the applicant which owns and operates medical centres and has done so since about 1998. Dr Rajendran does not say if the words also have another meaning.
(6) Dr Andrew, who provides accreditation services to the applicant, associates the phrase with the publicly listed company which owns and operates medical centres. He first became aware of the applicant in about 1998. He does not say whether he understood the phrase to have any meaning apart from being a reference to the applicant.
(7) Dr Moore, who owns shares in the applicant, had discussions with the applicant's recruiters and ultimately entered into a contract with the applicant and practises from one of its medical centres, associates the phrase with the applicant which operates a chain of medical centres in Australia. He has seen the phrase in medical magazines on occasions as referring to provision of general practice services since about 2005 but has not heard a patient refer to themselves as receiving primary health care.
(8) Dr Kosterich, who worked for a competitor of the applicant in a managerial role and examined the competition including the applicant for that purpose, said that to him the phrase has two meanings. One is a system of care - primary health care is offered by GPs and nurses and is different from secondary health care offered by specialists and tertiary health care offered by hospitals. He probably learnt this meaning in university in the 1980s. He knows also that the Commonwealth has used the phrase in the context of community care over the years including the papers released by the Commonwealth from 2008. The other is the applicant as a corporate medicine provider, by which he means the applicant runs medical centres and provides GPs with administrative and managerial assistance a those centres. He gives meaning to the phrase depending on the context. When used to refer to "an organisation or clinic or service" he thinks of the applicant as a corporate entity. When used generally, he thinks of the level of care.
(9) Dr Ling, who had discussed joining one of the applicant's medical centres with Dr Bateman, also gives the phrase two meanings. One is medical care at a basic level, a meaning he learnt at university in the 1980s. In his experience this meaning is used in the academic context and he has rarely used it outside this context. The other meaning is the applicant as a corporate medical provider, being the entity that owns and operates medical practices in Australia. He first became aware of this second meaning in about 2003 as a result of being a member of the board of the Adelaide Northern Division of General Practice which was concerned about the impact one of the applicant's medical centres would have on other medical centres in the vicinity.
(10) Dr Gilroy, who runs a number of medical centres, associates the phrase with the applicant's medical centres. She did not use the phrase to describe general practice and did not consider the term to be in common use for that purpose. She believed that use to describe front-line medical services was only recent as at 2015 and that GPs did not refer to themselves as "primary health care providers". However, for about 11 years, she was aware of the use of the phrase in public health policy. From her point of view she was busy in day-to-day practice and did not take much notice of medical policy issues.
(11) Dr Mara, who audits the applicant's medical centres, associates the phrase with the corporate chain of medical centres run by the applicant. From his experience as a GP he is also aware that the phrase refers to integrated medical care. In his view this meaning had evolved over time. It was used in relation to Indigenous health care or health care in underdeveloped or remote communities but now means first line, non-hospital, in-community care. He was aware of some parts of the Commonwealth Government's strategy documents relating to primary health care in 2008 and thereafter. He thought this meaning of the phrase was entering the consciousness of GPs only relatively recently in association with the Commonwealth Government's strategies from 2008 onwards.
(12) Dr Gabriel, a medical director with the applicant who obtained her undergraduate degree in Cairo in 1985 but has worked in Australia in medicine since 1991, became aware of the applicant in 2000. In her experience, GPs she speaks to are aware of the applicant as a "leading provider of medical centre management and support services to health care professionals". She had not heard the phrase otherwise in common use with other GPs. She said she first heard of the other meaning of primary health care (as "the GP frontline or the first encounter with patients") in about 2010 as a result of a dispute involving the applicant.
105 It is apparent from the evidence of these GPs that only one, Dr Gabriel, appears to have been unaware of the meaning of first level health care before the priority date. Five GPs (Drs Stiebel, Selim, Kosterich, Ling and Mara) were aware of the core meaning of primary health care and parts of its extended meaning before the priority date. Two other GPs, Dr Moore and Dr Gilroy, were also aware of that core meaning before the priority date but considered it confined to the public health policy context. Four GPs (Drs Monk, Rogers, Rajendran and Andrew) did not say whether they knew of a meaning other than a reference to the applicant as an entity operating medical centres. Further, while all of the GPs were aware of the applicant as a corporate entity which operates medical centres to which it recruits GPs, apart from Dr Gabriel who referred to the applicant as a provider of "medical centre management and support services to health care professionals", the GPs described their understanding of the phrase in that context as a reference to the corporate entity which owns, operates or runs medical centres, not as a reference to the applicant providing the Services to GPs and health professionals.
106 Other evidence supports the conclusion that, before the priority date, "primary health care" meant first level or first contact health care in Australia, of which GPs formed a critical part. In its own prospectus from May 1998, this statement on behalf of the applicant appears (my emphasis):
Primary Health Care believes this fragmentation, together with the size of the primary health care industry and the advantages which it believes that its medical centres offer doctors and patients, will enable the Company to further expand its existing medical centres and specialist clinics
107 The General Practitioner Conference and Exhibition, which the applicant sponsors, is consistently described as Australia's "primary health care event of the year".
108 As noted, according to Mr Bateman, his father adopted the corporate name because he considered it to be "unique and memorable, and reflected the services that would be available to patients attending the centres". In other words, the founder of the company must be taken to have known in 1994 that GPs were providing "primary health care services" to patients.
109 The applicant noted that it is "a consistent theme in…public health literature that the expression 'primary health care' does not have any clearly defined scope or meaning". Understood in context, however, it is apparent that what such statements are conveying is that "primary health care" is a broad term with the consequence that it can be used in different contexts to mean more than the basic or core meaning of first level/first contact health care. There is no suggestion in the evidence that this core meaning is in dispute, unclear or ambiguous or that GPs, irrespective of the fact that they refer to themselves as GPs rather than "primary health care providers" are not in fact providing primary health care. The core meaning is a common thread which underpins all of the documents to which the parties referred.
110 I also do not accept the applicant's criticisms of the departmental witnesses or of Professor Harris.
111 As to the departmental witnesses, it was obvious that the affidavits and statutory declarations, in many respects, took the same form and used the same language. There was nothing in the evidence, however, which would support the proposition that the evidence was created in order to present a "unified position on what was suggested to be each departmental officer's 'personal knowledge' about the descriptive meaning of 'primary health care'". Indeed, the evidence was to the contrary. The fact that, in the case of Mr O'Donoghue, the affidavit was prepared by a third party based on discussions with Mr O'Donoghue does not mean that the matters set out in his affidavit were not accurate. Mr O'Donoghue's evidence was to the contrary. Moreover, the fact that the Mr O'Donoghue was unaware that other affidavits took the same form and used the same language shows the lack of any purpose as suggested by the applicant. As such there is no foundation to infer that the evidence did other than accurately convey the views of each witness. Moreover, there was no call upon the respondents to explain anything about the affidavits or statutory declarations.
112 As to Professor Harris, his evidence provided a proper foundation for the opinions he expressed. The fact that there is no survey evidence about the meaning attributed to "primary health care" is immaterial. Professor Harris has the requisite training and experience to express an opinion about what the phrase means in the relevant sector. His evidence was not merely argumentative. Nor, in my view, is his evidence inconsistent with the bulk of the evidence of GPs called by the applicant (discussed above).
113 In my view, even if Professor Harris's evidence about GPs generally is put to one side the weight of the evidence supports the conclusion that as at the priority date the ordinary signification of the phrase "primary health care" to a substantial number of persons involved in the provision of health care in Australia was the first level of health care available in the health system incorporating GPs but also other health professionals who would be the first point of contact between an individual and the health care system or, in shorthand, first level/first contact health care.
114 The fact that the phrase also meant an approach to health care in which that first level of care was integrated with the national health system and, as part of that integration, incorporated other socio-economic objectives (not all of which a substantial number of people involved in health care would necessarily agree about) does not mean that the phrase had or has no ordinary signification. Nor does the fact that, at the priority date, a number of people involved in the health care system also knew that the phrase was the name of a corporation which owned, operated and/or ran medical centres. In respect of this last observation, it will be noted that the applicant's evidence was weighted in favour of GPs who had either been recruited by the applicant or had been in discussions with the applicant for that purpose or had some specific reason for having known about the applicant. Further, even when the GP did have reason to know of the applicant's business model, no-one but Dr Gabriel described it as involving the provision of the Services to GPs and health professionals.
115 Insofar as members of the public are concerned, the applicant relied on various statements in government policy documents to the effect of the statement in the 2009 Report to Support Australia's First Primary Health Care Strategy that:
[P]rimary health care is a term that is not widely used or even understood with most people simply distinguishing between the health care they receive in the community and the health care they receive in hospital.
While there are a number of definitions available, including from the World Health Organisation and the Australian Primary Health Care Research Institute, in practice there is no absolute or consistent view about whether particular settings and services are part of primary health care or not.
116 Again, when read in context it is apparent that there is no suggestion here that "primary health care" does not mean first level or first contact health care. Nor is it suggested that a member of the public, confronted with the phrase, would not understand this core meaning as a result of the ordinary meaning of each of the words. The health care which people receive in the community is primary health care so the distinction which the report says most people draw in fact accurately reflects the health policy meaning of the phrase. The points being made are first that members of the public, in contrast to those involved in health care, do not think in terms of primary, secondary and tertiary health care and, second, that there is room for debate amongst those involved in health care about whether any particular activity involves primary health care or some other level of care. What reading the documents in context also makes plain is that, whatever the bounds of that potential for debate, the provision of medical services by GPs is a setting involving the provision of primary health care. It is an unequivocal example of the provision of what a substantial number of those involved in the health sector would know involved primary health care.
117 I also consider that this core meaning, of first level or first contact health care, would be understood by a substantial number of people seeking to access health care as at the priority date. That is, if a person saw "primary health care" in the context of seeking health care for themselves or a family member or associate, they would understand the reference to be to a form of health care, being first level/first contact health care. They would do so because of the ordinary meaning of each word which makes up the phrase. While such a person may not distinguish between primary, secondary and tertiary levels of health care, or think of primary health care as an approach to health care in the extended sense of the term as used in the health policy context, they would understand the ordinary signification of the phrase to be first level/first contact health care. Such a person, moreover, would be very unlikely to associate the phrase with the applicant because the applicant's marketing is targeted at GPs, not members of the public. One exception to this would be those with an interest in publicly listed companies operating in the health care sector (about which Mr Symons gave evidence) but people within this class could not be assumed to be a substantial proportion of the general public.