Thredgold v Australian Community Pharmacy Authority [1999] FCA 23 | Case summary

"On the other hand, the legislature may make the power to do such an act contingent upon the actual existence of a state of facts: see, for example, the discussion by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391. Where the legislature has made the exercise of a power contingent upon the actual existence of a state of facts the existence or non-existence of those facts may be determined by a court having jurisdiction to review the decision. Although in some cases it may be very difficult to decide upon which side of the line a particular provision falls, the question is one of construction: see for example Architects Registration Board of Victoria v Hutchison(1925) 35 CLR 404 esp at 412 per Starke J; R v Gray; Ex parte March (1985) 157 CLR 351 at 372-3, 376-7, 378-9 and 390-1; 62 ALR 17." (p361) 22 I do not see this passage as affording any assistance to the applicants. In my opinion, this is a clear example of a fact-finding tribunal being entrusted with the responsibility of satisfying itself about various issues, one of which being the issue of distance. In the words of the Chief Justice in an earlier sentence, the Authority is "to determine the existence of certain facts ...". It would not be appropriate to describe the Authority's task as being empowered to make its recommendation "contingent upon the actual existence of a state of facts.". Such a proposition leaves unanswered how one would ascertain the relevant fact. Mr Abbott properly drew the attention of the Court to the decision of Branson J in The Pharmacy Guild of Australia v Australian Community Pharmacy Authority (see above) where the same argument was considered by her Honour and rejected. I respectfully agree with her Honour's reasons and decision. Her Honour said: "The jurisdiction to consider an application and to make a recommendation in respect of that is not by the act made subject to the existence of any fact other than the existence of the application" 23 It was this passage that Mr Abbott sought to challenge but, in my opinion, it is a correct statement of the law. It was the lodging of the appropriate application by National Pharmacies that gave to the Authority jurisdiction to consider whether it would recommend approval; the question of distance between two doorways was then a matter of evidence upon which the Authority was to make a determination 24 Mr Abbott next referred to the decision of Wilcox J in the Attorney General (NT) v Hand (1988) 16 ALD 318. However, before referring to that case, it is desirable to set out the provisions of s 5 of the ADJR Act as certain of its provisions are referred to in the cases to which reference is made hereafter: "5(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 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; (b) that procedures that were required by law to be observed in connection with the making of the decision were not observed; (c) that the person who purported to make the decision did not have jurisdiction to make the decision; (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made; (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; (g) that the decision was induced or affected by fraud; (h) that there was no evidence or other material to justify the making of the decision; (j) that the decision was otherwise contrary to law. (2) The reference in paragraph (1) (e) to an improper exercise of a power shall be construed as including a reference to: (a) . . . (b) . . . (c) . . . (d) . . . (e) . . . (f) . . . (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) . . . (j) . . . (3) The ground specified in paragraph (1) (h) shall not be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 25 In Attorney General (NT) v Hand (see above)an Aboriginal Land Commissioner recommended to the Minister that certain land be granted to a land trust for the benefit of the traditional owners. The Northern Territory Government sought review of the decision on the ground that a portion of the land - a road - was land over which the public had a right of way which, pursuant to the relevant statute, was not available for a grant. The government submitted that the decision amounted to an improper exercise of a power and an error of law: pars 5(1)(e) and (f) of the ADJR Act. The government applied to tender evidence with respect to the construction of the road, its use and the reason for its construction. The application to tender that evidence was refused as, on the material before the Minister (as the decision-maker), there was nothing to suggest an improper exercise of power and no error of law was discernible from a reading of the material that was before the decision-maker and the reasoning of the decision-maker. On the other hand, as his Honour pointed out, there can be cases in which it would be appropriate for the reviewing Court to receive evidence; it all depends upon the grounds of attack on the decision under review. His Honour explained the position saying: "It seems to me that inappropriate grounds were specified in the application. The case which the applicant really seeks to make is that, irrespective of the evidence before [the Aboriginal Land Commissioner] and of his findings, the Minister was not authorised to reach the state of satisfaction referred to in s 11(1)(b) of the Land Rights Act in relation to the site of the Mt Theo road; the reason being that, upon the true facts, that site was not "land" within the meaning of s 11(1). The appropriate ground under which to have raised that contention would have been para (d) of s 5(1) of the Administrative Decisions (Judicial Review) Act; namely, "that the decision was not authorised by the enactment in pursuance of which it was purported to be made". Had that ground been taken it would, in my opinion, have been open to the applicant to adduce evidence to show that, regardless of the content of the material actually before the Minister, the relevant decision was one which he could not lawfully make." 26 That case can be distinguished from the present as Hand's case was an example of finite evidence that had not been placed before the Commissioner or the decision-maker; it was a case where the actual facts denied the decision-maker authority to make the decision that he purported to make. In the present case the contentious issue arises from the conflicting reports of the surveyors: is a particular route "the shortest lawful access route" and if so, is it not more than one kilometre, measured door to door? It is well known that views, genuinely held, often differ on questions, the answers to which involve matters of opinion. The competing opinions of the three surveyors were properly before the Authority and the Authority was required by the provisions of the Act and the rules to make its assessment on the evidence that was lawfully before it so that it might come to a decision whether it would or would not make a recommendation to the Secretary; there is no case warranting the presentation of yet another opinion. 27 Next Mr Abbott argued that the Authority improperly exercised its power because it should have made, but failed to make, inquiries about the many traffic and safety matters that were canvassed in detail in the Young report: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. There will be occasions when it will be appropriate for the Court to receive evidence so that it may be aware of the nature and detail of the material that would have been available to a decision-maker if he or she had made further inquiries. But those occasions are limited; they relate to circumstances where the conduct of the decision-maker in not making further inquiries was unreasonable. In Prasad's case, Wilcox J said at p 169: "The most restrictive view is that par (g) [of subs 5(2) of the ADJR Act] applies only to a case in which the court is able to hold that, upon the material actually or constructively before the decision-maker, the decision was unreasonable. At the opposite extreme it is arguable that the question is whether, upon the evidence before the court as to the facts at the date of decision, and whether or not all of those facts were know to, or reasonably ascertainable by, the decision-maker, his decision, objectively considered, was unreasonable. An intermediate position is that the court is entitled to consider those facts which were known to the decision-maker, actually or constructively, together with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him". 28 Those observations were referred to with approval by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 364 at 364; their Honours said: "His Honour went on to express a tentative preference for the intermediate position, based on the view that under s 5(1)(e) and s 5(2)(g) [of the ADJR Act] the court is concerned with the manner of exercise of the power. Just as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course. Accepting the correctness of this approach in an appropriate case, it does not seem to us that the present case was argued on the ground of s 5(2)(g) or on the basis of "Wednesbury" unreasonableness. And we do not see how the suggested failure to initiate inquiries can be supported on the footing that there was some departure from the common law standards of natural justice or procedural fairness." 29 I do not extract from these authorities any need for the Authority to receive further evidence from a different source. No doubt Mr Young's evidence would offer more details in that it would address such matters as traffic volume, pedestrian safety and so on - matters that were not addressed in any of the surveyors' reports. But they are matters, unlike exact measurements, that the Authority can have regard to from its own knowledge and experience; I see no need for additional evidence on these and other subjects being adduced in this Court. 30 Finally, Mr Abbott submitted that, because two members of the Authority had visited the location with the surveyor, this Court is entitled to have before it such information as would have been apparent to those members. This, said Mr Abbott, could best be achieved by having a person with the qualifications of Mr Young give evidence before the Court of what the members of the Authority would have seen (or should have seen) when they made their site inspection. There is no substance in this proposition. It is well accepted that many decision-makers exercising statutory powers have to rely, at least in part, upon their own knowledge. "That is because the submissions before them do not necessarily deal with all matters of fact . . .". Szelagowicz v Stocker (1994) 35 ALD 16 at 20 per Davies and Einfeld JJ. That case also concerned an unsuccessful application to tender further evidence in the review court. In dealing with that subject their Honours referred to pars 5(1)(e), (f) and (h) and subs 5(3) of the ADJR Act, saying: "Subsections (1)(h) and (3)(b) of s 5 extend to a very limited degree the remedies available under s 5(1)(e) and (f). As we have mentioned, all the usual challenges to decisions by reference to the evidence or material are challenges which fall under s 5(1)(e) or (f). These challenges are determined by comparing the decision and the reasons for the decision with the material which was before the decision-maker. They encompass challenges that the decision was perverse, was not such as could be reached by a reasonable decision-maker and so on. Section 5(1)(h) and (3)(b) deal with the circumstance where such a ground is not available. They provide a ground of review where there was before the decision-maker no evidence of a fact, the decision was based on the existence of that fact and the fact did not exist. On this ground, a decision may be challenged, but only if evidence is called which positively establishes that the fact did not exist. They do not permit evidence to be adduced to contradict either evidence or material which was before the decision-maker or an inference which was available to be drawn from that evidence or material." 31 In Loveridge v Pharmacy Restructuring Authority (see above) Whitlam J refused to admit a surveyor's evidence about the distance between two premises on the ground that it had not been before the Authority. In Banias v Australian Community Pharmacy Authority (unreported: Sundberg J: Judgment delivered 18 July 1997) his Honour ruled that opinions about the public's right to traverse the car park of a supermarket (as an issue in determining distance) was likewise inadmissible on the ground that it had not been before the Authority. 32 In my opinion, and contrary to Mr Abbott's submissions, it is obvious that there was evidence before the Authority about the relevant distance from the one doorway to the other. On the question of ruling on the admissibility of Mr Young's report, it is not possible to receive it on the ground that there was no evidence on the subject before the Authority. What use may be made of the evidence that was before the Authority is another subject that is to be considered when discussing the applicants' grounds of review. THE GROUNDS OF REVIEW 33 In their original application the applicants claimed a right of review on each of the nine grounds set out in subs 5(1) of the ADJR Act. When the matter was called on for hearing they abandoned grounds (a), (b) and (g) (a breach of the rules of natural justice, failure to observe procedures and fraud) and following upon the ruling against receiving the Young report, Mr Abbott was effectively limited his argument to two issues: first, that there was an error of law in that the Authority failed to give any, or any proper, consideration to the meaning of the expression "shortest lawful access route": par 5(1)(f) of the ADJR Act; secondly, that its decision was an improper exercise of a power in that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power: par 5(1)(e) and par 5(2)(g) of the ADJR Act. 34 Mr Abbott also submitted that the Authority fell into error in failing to consider issues of safety and traffic obstruction and that there was no evidence upon which it could base a finding that crossing Payneham Road at a forty five degree angle was a "lawful access route". However, I do not see these matters as separate grounds for review; rather they are all centred on one dominating issue: that is, was the Authority entitled to treat the third option in the second Cavallo report measuring 993.1 metres as a route that was available for consideration as "the shortest lawful access route"? THE SHORTEST LAWFUL ACCESS ROUTE 35 In submitting his second report to the Authority, Mr Cavallo wrote that he had had regard to "safety factors such as walking within the confines of pedestrian crossing . . .". That comment was relevant to his first two options because they each involved the use of traffic lights. But his comment cannot, under any circumstances, have any relevance to his choice of the third option. The hypothetical pedestrian who is required to cross over Payneham Road at a forty five degree angle does not have the protection of traffic lights or a pedestrian crossing. In reporting on the third option Mr Cavallo wrote: "This route proposes to cross diagonally across Payneham Road from the corner of the National Pharmacy shopping centre. I have received verbal confirmation from the South Australian Traffic Information Office that there are no laws prohibiting this. It seems feasible that if a pedestrian were to cross at this point he or she would tend to "veer" towards the direction that they intended to go. The angle that we measured this at was at forty five degrees to the direction of travel. This route then follows the north side of Payneham Road to the No 1 Portrush Road entrance." 36 He does not suggest that there is evidence that pedestrians cross over any part of Payneham Road at any time in this manner: he does not explain why he chose an angle of forty five degrees. If the angle was greater, the distance would have been greater and perhaps it would have exceeded one kilometre. On the other hand, why did not Mr Cavallo suggest a more acute angle and thereby reduce the distance well below the one kilometre mark? One might be excused for thinking that the object of his exercise was to determine an angle of cross over that would give, mathematically, a distance of less than one kilometre. 37 The question of the safety of pedestrians is a matter to be considered when testing whether a nominated route can properly be accepted as "the shortest lawful access route". In Australian Community Pharmacy Authority v Hanna (1996-1997) 24 AAR 213 at 225 Mansfield J said: "The rule does not, in my view, contemplate a circumstance whereby a pedestrian should have to wait, to dodge and weave, to run or pause to avoid traffic movement in its conception of access route." 38 In Hanna v Australian Community Pharmacy Authority (unreported: judgment delivered 6 March 1998) I agreed with the remarks of Mansfield J on the subject of safety. I said: "In my opinion, the task of the AAT, when considering the subject of "safety", was to consider it as an aspect of the physical attributes of the route that was under consideration and, in that context, to consider it in the interests of the whole community." 39 I do not consider that it would be appropriate for this Court to find that the only route available is one that makes use of one or other of the sets of traffic lights: nor do I feel that this Court should lay down that a pedestrian must cross a road (without the benefit of lights or a pedestrian crossing) at right angles. The Court's task, in the particular circumstances of this case, is to determine whether the Authority erred in law when it concluded that it is appropriate to allow for pedestrians crossing this road - at any time of the day or night - at a forty-five degree angle. 40 Mr Simpson, counsel for the Authority, submitted that the question of safety had been the subject of express reference in Mr Cavallo's second report. Added to that, he pointed out that two members of the Authority had made a site inspection; Mr Simpson maintained that it was for the Authority to make a decision on the issue of safety and that this Court should proceed on the assumption that the Authority knew of the importance of safety. 41 Mr Simpson advanced four points in support of the Authority's decision. First, he acknowledged that it would not be appropriate to contemplate a route whereby a pedestrian walked diagonally across Payneham Road from Martin Corner to Lower Portrush Road; but, he said, that concession does not mean that there can be no deviation or no angle of cross-over. It was, so he submitted, for the Authority to assess whether the forty five degree cross-over was appropriate. I agree that it was the primary duty of the Authority to make that assessment but it leaves unanswered whether the Authority acted reasonably - whether its decision was perverse. Secondly, he submitted that it would not be proper in a matter such as this for this Court to conduct a general review of the facts and make its own findings. I agree. Thirdly, and in answer to the problem of dodging and weaving to which Mansfield J referred, Mr Simpson said that a pedestrian who crossed Payneham Road at right angles would also have to engage in some dodging and weaving. That is true; it is not the task of this Court to review the decision of the Authority only for the purpose of supplanting the Authority's decision with the Court's opinion but, again, the issue of reasonability remains for consideration. Finally, Mr Simpson submitted that even if this Court were of the view that the Authority erred in identifying the forty five degree angle route as the shortest lawful access route, the Court should, in the exercise of its discretionary power, decline to send the matter back to the Authority. According to Mr Simpson, it is clear on the material that is before the Court that there is an access route between these locations that is less that one kilometre - there is the route identified in the Beddome report and the route identified in the first Cavallo report. The difficulty with this submission is two-fold; first the Authority did not rely on the Beddome report and the second Cavallo report challenges its accuracy; secondly, the second Cavallo report appears to correct an inaccuracy in the first Cavallo report. UNREASONABILITY 42 As a ground of review unreasonableness has generally been understood in the United Kingdom as requiring "something overwhelming" in order that it be established: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 per Lord Greene MR. As Lord Diplock said in Counsel for Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374 at 410 when emphasising how extreme the unreasonableness must be: "It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." However, in Australia Lord Diplock's approach has tended to be rejected. Sheppard J in Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 87 stated: "I would prefer a view, however, which did not put the test in language which is, with respect, as vehement and extreme as that used by Lord Diplock. I think that from time to time it will be found that manifest unreasonableness is present in cases to which Lord Diplock's words could not be applied. I refer, for example, to the recent decision of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412 and to the decision of this Court in Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1985) 68 ALR 222; 7 FCR 341. Manifest unreasonableness was found in those cases notwithstanding the judicial disagreement to which they gave rise." In a recent decision on Wednesbury unreasonableness, Finn J stated in Botany Bay Council v Minister of State for Transport and Regional Development (unreported, Federal Court, 3 November 1998) at 24-25: "It is important to emphasise at the outset that the ADJR Act's s 5(2)(g) 'so unreasonable ground' is one that is 'extremely confined': Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36. It does not provide a mask for merits review. It does not, under another guise, allow the review of a decision on grounds of substantive unfairness: ibid 37. And it is not made out by demonstrating that the decision reached is one with which reasonable minds might differ and with some vigour. It is not sufficient to show that a different conclusion or course of action could reasonably have been arrived at or taken: Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28, at 59-65; see also Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537, at 561-563." It is clear, therefore, that the courts are (and should continue to be) reluctant to interfere with factual findings on the unreasonableness ground alone. 43 Mansfield J in Hanna's case (see above) said that a lawful route was one that would "generally (be) available to be taken between approved premises and the proposed premises (and was one) that could hypothetically be used by ordinary persons travelling that route."(p220) This passage has been noted with apparent approval by Sundberg in Banias v Australian Community Pharmacy Authority (see above) and Goldberg J in Karalis v Australian Community Pharmacy Authority (unreported, 22 December 1998) and, with respect, I am happy to adopt it; the description is one which allows for all relevant matters to be considered - one of which being the important question of safety - a subject which I described in Hanna's case as "an aspect of the physical attributes of the route". Mr Besanko QC, counsel for National Pharmacies submitted that the question of safety had been addressed by Mr Cavallo in his second report as is evidenced by his contacting the traffic information office of the South Australia Police Department. It could well be that Mr Besanko is correct - although one might also infer that Mr Cavallo's reason for checking with the police might have been to test the issue of lawfulness in crossing over a main arterial road at a forty five degree angle: on this subject reference may be made to s 87 of the Road Traffic Act 1961 (SA) which states that a person "must not walk without due care or attention or without reasonable consideration for other persons using the road." I am however, prepared to accept Mr Besanko's submission for I do not consider that it is the role of this Court to assume an overly critical role of the Authority and I believe that like treatment should be afforded to those who have assisted the Authority in these deliberations. 44 I remain extremely concerned that the identified "shortest lawful access route" contemplates hypothetical pedestrians crossing over Payneham Road at a forty five degree angle. The word "shortest" is not to be considered in isolation nor is it to be given a place of dominance when the Authority embarks upon its task; in the same breath, it must be stressed that safety cannot demand separate and dominant consideration. All physical aspects of a putative route must be evaluated for the purpose of determining whether it meets the test of being the "shortest lawful access route". Mansfield J in Hanna's case (see above) concluded at 223: "There will be suggested routes which, as a matter of practical common sense, do not meet that description: steepness, danger, obstacles and the like will provide obvious examples. There will come a point at which such impediments will be of such a nature as not to destroy the quality of the route as an access route. Generally, where that line is crossed is a question of fact. A route is not an access route for the purposes of the 1995 Rules if only the fittest and strongest can use it, any more than it may be an access route even if a particular person or persons by reason of age of disability cannot use it." 45 It is within that context that I express my alarm that members of a community (especially for the young, the elderly and the infirm)would be expected to cross-over a main arterial road that carries heavy traffic throughout the day with their back half-turned to west bound traffic. It need hardly be said that the two sets of traffic lights offer a measure of safety to pedestrians that is not available when they attempt to cross over the road at other points. In my opinion, limited solely to the facts of this case, it was unreasonable in the extreme to contemplate a route which had pedestrians half-turning their back to the flow of traffic. I fall short of saying that any route should have used one of the sets of traffic lights for that must be the decision of the Authority. But I do say that the existence of those traffic lights is a factor to be considered in coming to their decision. 46 In my opinion, the decision of the Tribunal amounted to the exercise of a power that was so unreasonable that no reasonable person could have so exercised the power. In reaching this conclusion I have had regard to the following factors. First, both the Tribunal in making its decision, and counsel in later defending that decision, accepted that safety was one of the criteria to which the Tribunal should have regard in making its decision, yet it could not have adverted to that criteria by expecting pedestrians to ignore pedestrian crossings in favour of a method of crossing that required them to half-turn their back to the flow of traffic. In Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435 at 453, Wilcox J explained that the ground of unreasonableness probably has its most frequent use in cases where: "…the challenger can demonstrate an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker's own criteria. Parramatta City Council v Pestell and Prasad v Minister for Immigration and Ethnic Affairs constitute examples of this type of case." 47 Secondly, it would only be in rare circumstances that an unsafe route could constitute other than an unreasonable route. As noted above, Mansfield J indicated that as a matter of practical common sense, danger provided an obvious example of a route that may not meet the description of shortest lawful access route. The fact that the proposed route might endanger a person's life places it well outside the realms of reasonableness. 48 Thirdly, the Tribunal relied on an angle seemingly chosen by the surveyor at random, with no rational basis for that choice and with no reason to believe that people do or might cross the road at that angle. The unreasonableness ground has been used to set aside findings based merely on suspicion or speculation. See Ruangrong v Minister for Immigration and Ethnic Affairs (1988) 14 ALD 773 at 776-777. 49 I do not consider that this is a case where the Court should exercise its discretionary power not to send the matter back to the Authority. I do not accept that it must be assumed that the Authority will come to the same decision. There will have to be an order allowing the appeal and setting aside the decision of the Authority. The matter will have to be remitted to the Authority. However counsel have asked that I defer making final orders until they have had an opportunity to address on the date from which the orders of the Court will operate. There also remains the question of the application to join the Secretary and the issue of costs. These matters can be addressed on the adjourned hearing. 50 There will be an order that further consideration of these proceedings are adjourned with liberty to any party to bring the matter back on for hearing on seven days notice. I certify that this and the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin

Thredgold v Australian Community Pharmacy Authority

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