FEDERAL COURT OF AUSTRALIA Nyoni v Pharmacy Board of Australia (No 2) [2016] FCA 1397 File number(s): WAD 357 of 2014 Judge(s): SIOPIS J Date of judgment: 25 October 2016 Catchwords: CONSUMER LAW – the third respondent published on its website a list of conditions which had been imposed by the first respondent on the practice of the applicant as a registered pharmacist – the applicant alleged that the imposition and publication of the conditions comprised misleading or deceptive conduct and gave rise to defamatory imputations – the applicant alleged that the second respondent was accessorily liable – whether there was an evidentiary foundation for making the claim against the second respondent – whether the applicant's claim against the second respondent should be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth). Legislation: Federal Court of Australia Act 1976 (Cth) s 31A Australian Consumer Law ss 2, 236 (Sch 2 of the Competition and Consumer Act 2010 (Cth)) Competition and Consumer Act 2010 (Cth) s 75B Poisons Act 1964 (WA) Sch 8, ss 23(2), 23(2)(a) Cases cited: Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294 Spencer v Commonwealth (2010) 241 CLR 118 Yorke v Lucas (1985) 158 CLR 661 Date of hearing: 25 October 2016 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 42 Counsel for the Applicant: The Applicant appeared in person. Counsel for the First and Third Respondents: Mr G Pynt Solicitor for the First and Third Respondents: Australian Health Practitioner Regulation Agency Counsel for the Second Respondent: Ms K McDonald Solicitor for the Second Respondent: State Solicitor's Office ORDERS WAD 357 of 2014 BETWEEN: EMSON NYONI Applicant AND: PHARMACY BOARD OF AUSTRALIA First Respondent DR ANDREW ROBERTSON IN HIS CAPACITY AS THE DELEGATE TO THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF HEALTH Second Respondent AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY Third Respondent JUDGE: SIOPIS J DATE OF ORDER: 25 OCTOBER 2016 THE COURT ORDERS THAT: 1. The whole of this proceeding is dismissed as against the second respondent pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth). 2. The applicant is to pay the costs of the second respondent, including reserved costs, on an indemnity basis. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SIOPIS J: 1 This an application by the second respondent, Dr Andrew Robertson, for summary dismissal under s 31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) of the claim made against him by the applicant, Mr Emson Nyoni. 2 Mr Nyoni's claim is made against the second respondent in his capacity as the delegate to the chief executive officer of the Department of Health of Western Australia (the CEO). The CEO has responsibility for the administration of the Poisons Act 1964 (WA) and the Poisons Regulations 1965 (WA). 3 The second respondent seeks summary dismissal on the basis that there is no evidentiary foundation for the allegations relied on by Mr Nyoni in support of his claim against the second respondent, and that, accordingly, Mr Nyoni has no reasonable prospect of succeeding in his claim against the second respondent. 4 The background to the application is as follows. 5 In January 2013, Mr Nyoni, who is a qualified pharmacist, owned and operated a pharmacy in Kellerberrin in Western Australia. At that time, Mr Nyoni held an authority under s 23(2) of the Poisons Act to sell by retail, drugs which were listed in Schedule 8 of the Poisons Act. Drugs listed in Schedule 8 are addictive drugs. The Poisons Regulations, relevantly, prescribed how these drugs were to be stored and how dealings in these drugs were to be recorded. 6 On 23 January 2013, Mr Nyoni was found guilty of contraventions of the Poisons Regulations in the Magistrates Court in Western Australia. 7 As a consequence of these convictions, the delegate of the CEO, who then was Dr Revle Bangor-Jones, wrote a letter to Mr Nyoni, dated 12 April 2013, advising him that the authority conferred on him under s 23(2) of the Poisons Act, effective from 1 May 2013, in relation to all substances in Schedule 8, was revoked. 8 By a letter, also of 12 April 2013, Dr Bangor-Jones also wrote to an officer of the third respondent, the Australian Health Practitioner Regulation Agency, advising that on 23 January 2013, Mr Nyoni had been found guilty in the Magistrates Court of "breaches of the Poisons Act and Regulations pertaining to his schedule 8 drugs". The letter also stated that Mr Nyoni's authority as a registered pharmacist under s 23(2) of the Poisons Act in relation to Schedule 8 drugs had been revoked. 9 Consequent upon this notification, the first respondent, the Pharmacy Board of Australia, after having consulted with Mr Nyoni, on 26 November 2013, imposed conditions on Mr Nyoni's registration as a pharmacist. The conditions imposed were the following: 1. The Registrant is prohibited from taking or self administering Schedule 8 drugs, save for those that may be legally prescribed for him. 2. The Registrant is prohibited from manufacturing, prescribing, possessing, supplying, or selling Schedule 8 drugs. 3. The Registrant is prohibited from supplying Schedule 8 drugs, save in an emergency. Where in an emergency the Registrant has personally supplied Schedule 8 drugs to any person, the Registrant must notify the Board in writing of the emergency within 24 hours, and provide such details relating to the emergency as are required by the Board. 4. The Registrant is to undergo an audit of his practice (Audit) conducted by a person appointed by the Board (Appointee). 5. The first Audit will be conducted between three and six months after the date that these conditions are imposed (First Audit). 6. Subsequent Audits may be undertaken at intervals of no less than three months from the date of the First Audit. 7. The costs of any Audit will be borne by the Practitioner. 8. Following an Audit, the Appointee will prepare a report (Report) and provide it to the Board, a copy of which is to be disclosed to the Registrant within two months of the Report being received by the Board. 9. The parameters for the Report will be as set by the Board. 10 The fact that the first respondent had imposed these conditions on Mr Nyoni, and the conditions themselves, were then published by the third respondent on its website. 11 It is the first of the conditions, in particular, which is the subject of the complaint made by Mr Nyoni in the originating application which was commenced by Mr Nyoni in this Court on 27 November 2014. As mentioned, this condition states that Mr Nyoni is prohibited from taking or self-administering Schedule 8 drugs, save for those that may be legally prescribed for him. 12 Mr Nyoni contends that an ordinary reader, who would read the list of conditions would infer that the conditions, other than the first, had been imposed consequential upon Mr Nyoni being a person who is addicted to Schedule 8 drugs. Further, Mr Nyoni contends that the publication of the conditions is misleading or deceptive and defamatory because he is not addicted to Schedule 8 drugs. Mr Nyoni claims that the fact that the conditions were imposed and, subsequently, published on the third respondent's website, has caused irreparable damage to his career. Mr Nyoni claims that the first and third respondents are liable for misleading or deceptive conduct in contravention of the Australian Consumer Law (the ACL) in Sch 2 of the Competition and Consumer Act 2010 (Cth), defamation, and malicious falsehood. 13 As I have said, Mr Nyoni had sued the second respondent in his capacity as the delegate of the CEO. Mr Nyoni alleges that, in relation to the claim against the first and third respondents under the ACL, the second respondent is liable as a person involved in the contravening conduct of the first and third respondents. Mr Nyoni relies on s 236 of the ACL, as read with s 2 of the ACL, although in Mr Nyoni's statement of issues he refers to s 75B of the Competition and Consumer Act. 14 Mr Nyoni alleges that the second respondent is a joint tortfeasor in respect of the defamation and the malicious falsehood causes of action. 15 I have ordered that the case be conducted by reference to statements of issues and not on pleadings. 16 One of the issues which has been identified by each of Mr Nyoni and the second respondent is whether the second respondent is liable as a person involved in the contravening conduct of the first and third respondents under the ACL, or liable with them as a joint tortfeasor at common law. 17 I made orders that Mr Nyoni file and serve a statement of facts and contentions in support of his claim against the second respondent in his originating application. 18 In his statement of facts and contentions in support of his claim against the second respondent, Mr Nyoni said that by letter dated 12 April 2013 "the Director, Disaster Management, Regulation and Planning of the Department of Health, Dr Andrew Robertson" notified the third respondent of Mr Nyoni's convictions and of the notice dated 12 April 2013 revoking his authority under s 23(2) of the Poisons Act to deal in Schedule 8 drugs. Mr Nyoni went on to say that the notification to the third respondent, dated 12 April 2013, was subsequently acted upon by the first respondent in imposing, and, by the third respondent, in publishing, the impugned conditions. 19 Mr Nyoni also said, in that document, that the second respondent was liable for the impugned conduct of the first and third respondents by reason of "ostensible authority", and "vicarious liability". Having listened to Mr Nyoni's oral submissions, I understand Mr Nyoni, thereby, to be contending that although the second respondent may not have formally held the position of the delegate of the CEO in respect of the administration of the Poisons Act at the time that the impugned conditions were imposed, the second respondent was the person who actually directed the Department of Health's dealings with the first and third respondents. 20 In support of this contention, Mr Nyoni referred to a letter from Ms Caddy, the legal advisor to the third respondent, dated 2 December 2014, addressed to the second respondent in his capacity as the delegate of the CEO. This letter refers to "previous correspondence advising you of the investigation about Mr Emson Nyoni". The letter went on to advise that the first respondent had referred a complaint to the State Administrative Tribunal in which it alleged that Mr Nyoni had personally dispensed Schedule 8 drugs in breach of the conditions. 21 In further support of his contention, Mr Nyoni also referred to the second respondent's previous dealings with Mr Nyoni in relation to the Poisons Act when the second respondent did hold the position as the delegate of the CEO. Mr Nyoni contended that that history of previous dealings showed that the second respondent was not benignly disposed towards him and wanted to cause him harm and to damage Mr Nyoni's career as a pharmacist. Mr Nyoni referred to the number of audits which were then conducted of Mr Nyoni's Kellerberrin pharmacy by the Health Department when the second respondent was the delegate of the CEO and; also, to the fact that the Health Department had been kept informed by an officer of the Shire of Kellerberrin of a circumstance in which the electrical power to Mr Nyoni's pharmacy was disconnected in October 2010, with a view to the second respondent using this circumstance against Mr Nyoni. (See, Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294.) 22 In support of his summary dismissal application, the second respondent relied on his affidavit which explained that the power to administer the Poisons Act is vested in the CEO of the Department of Health, but is delegated under an instrument of delegation to the person who, from time to time, holds the position of director of the Directorate of Disaster Management, Regulation and Planning in the Department of Health; and is not delegated to a specific person. In other words, the delegation is an incident of the holding of that office. The second respondent annexed the instrument of delegation to his affidavit. 23 The second respondent also deposed that he was not the person who occupied that position at the time that the conditions were imposed or in the time leading up to the imposition of the conditions. The second respondent said that between 10 December 2012 and 14 January 2014, he was the acting chief information officer in the Department of Health, and in that role he worked fulltime at the Health Information Network located in Osborne Park. The second respondent also deposed that he never communicated with the first or third respondents about Mr Nyoni during the time he was the acting chief information officer between 10 December 2012 and 14 January 2014; and that he only became aware of the conditions imposed by the first respondent on Mr Nyoni's registration as a pharmacist after he returned to the position of director of the Directorate of Disaster Management, Regulation and Planning on 14 January 2014. 24 The second respondent contended that the evidentiary foundation for Mr Nyoni's claim against him was so deficient that Mr Nyoni had no reasonable prospect of successfully prosecuting the claim against him; and that Mr Nyoni's claim against him should, therefore, be summarily dismissed. 25 The second respondent said that s 31A of the Federal Court Act was there in order to prevent claims for which there is no basis in fact, or for which there is not a sufficient evidentiary basis, from going to trial. The second respondent relied particularly upon the following observations of French CJ and Gummow J in the case of Spencer v Commonwealth (2010) 241 CLR 118 at [22]: The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories. 26 In order for Mr Nyoni to succeed in his claim at trial against the second respondent, Mr Nyoni will need to establish the specific elements of at least one of the causes of action he alleges against the second respondent. 27 Thus, for Mr Nyoni to succeed in his claim that the second respondent, in his capacity as the delegate of the CEO, was involved in each of the first and third respondents' contraventions of the ACL, Mr Nyoni will need to show that the second respondent either, counselled, procured, aided and abetted, induced or in some way was concerned in the first respondent imposing, or the third respondent publishing, the first condition on Mr Nyoni's registration as a pharmacist, knowing that it carried the imputation alleged by Mr Nyoni and that imputation was untrue or otherwise misleading or deceptive (Yorke v Lucas (1985) 158 CLR 661). 28 As to the claims at common law, Mr Nyoni will need to establish the second respondent, as delegate of the CEO, was part of a common design with one or both of the first and third respondents, pursuant to which they agreed to, in the case of the first respondent to impose, and, in the case of the third respondent, to publish, the first condition; and in the case of the malicious falsehood, knowing that it carried the imputation alleged by Mr Nyoni, that the imputation was false, and intending to harm Mr Nyoni's career as a pharmacist. 29 The second respondent contends that the materials before the Court relied on by Mr Nyoni, do not demonstrate a sufficient evidentiary basis for Mr Nyoni bringing his claim against the second respondent. Therefore, said the second respondent, there is no reasonable prospect of Mr Nyoni establishing at trial any of the causes of action alleged against him. 30 Mr Nyoni was given an opportunity to set out in his statement of facts and contentions the facts which he relied upon to support his claims against the second respondent in his capacity as delegate of the CEO. 31 As I mentioned, Mr Nyoni referred, in that document, to the letter of 12 April 2013 to an officer of the third respondent, advising of the convictions and the revocation of Mr Nyoni's authority in relation to Schedule 8 drugs. Mr Nyoni stated in his statement of facts and contentions that that letter was written by the second respondent. 32 However, it is obvious on the face of that letter that it was not written by the second respondent. In fact, as I have said, it was written by Dr Revle Bangor-Jones, the person who then held the position of director of the Directorate of Disaster Management, Regulation and Planning, and was then the delegate of the CEO. However, not only is the letter upon which Mr Nyoni relies not written by the second respondent, but there is nothing in the terms of that letter from which one could infer that the author of the letter sought to procure or otherwise bring about the imposition of the impugned conditions, in particular, the first condition, on Mr Nyoni's registration as a pharmacist. The letter does no more than to inform the third respondent of the fact of Mr Nyoni's conviction of offences under the Poison Regulations, and that the delegate of the CEO had issued a notice revoking Mr Nyoni's authority as a registered pharmacist under s 23(2)(a) of the Poisons Act in relation to Schedule 8 drugs, and enclosing a copy of the notice. 33 As I have mentioned, Mr Nyoni also referred to the history of the second respondent's involvement in investigations by the Department of Health of Mr Nyoni's Kellerberrin pharmacy under the Poison Act. However, that evidence predated the imposition of the conditions, and is irrelevant for the purpose of establishing the essential element upon which Mr Nyoni relies in this case, namely, that the second respondent was knowingly involved in the imposition by the first respondent, or the publication by the third respondent, of the first condition; or was part of a common design to that effect. 34 On the other hand, there is the evidence of the second respondent that he did not during the period leading up to, and when the conditions were imposed, act as the delegate of the CEO; and also, that he never communicated with the first and third respondents about Mr Nyoni during that time, and only came to learn for the first time of the imposition of the conditions in January 2014. 35 Mr Nyoni contended that the reference in the letter dated 2 December 2014 to "previous correspondence" undermined the second respondent's evidence that he was not the CEO's delegate when the conditions were imposed and had no part in the imposition or publication of the conditions. On this basis, said Mr Nyoni, the matter should be sent to trial so that the second respondent's evidence could be tested. 36 In my view, this letter does not comprise a sufficient basis to send the matter to trial. The letter from the third respondent to the second respondent was written more than a year after the conditions were imposed and at a time when the second respondent again held the position of director of the Directorate of Disaster Management, Regulation and Planning and, thus, was the delegate of the CEO. The content of the letter does not support any inference that the second respondent was involved in the imposition or publication of the conditions. 37 Also, during his oral submissions, Mr Nyoni seemed to suggest that there may exist some other document which may implicate the second respondent in the imposition or publication of the impugned conditions. In my view, that is an entirely speculative and unsatisfactory submission and does not comprise a sufficient basis for permitting the claim against the second respondent going to trial. 38 I might add that before the second respondent made this application for summary dismissal, I ordered that all the parties give discovery of the documents which existed in relation to the claim against the second respondent. No document of the kind speculated upon by Mr Nyoni during the course of his oral submissions, was discovered. 39 This appears to be a case where Mr Nyoni has permitted his judgment to be affected by the fact that the second respondent, as the delegate of the CEO, did have a prior involvement through the Department of Health in the investigation into his compliance with the Poisons Act; and, on that basis, he has made allegations in this case which are unsupported by any evidence. Mr Nyoni's claims in this proceeding are confined to the question of whether the imposition and publication of the impugned conditions in 2013 and, in particular, the first condition, comprised misleading or deceptive conduct or was otherwise defamatory or comprised a malicious falsehood. 40 For Mr Nyoni to have a reasonable prospect of success at trial in his claim against the second respondent, it is necessary that there be an evidentiary foundation to support his allegation of the involvement of the second respondent in the imposition or publication of the impugned conditions. The materials relied on by Mr Nyoni do not come close to demonstrating that there is such an evidentiary foundation. 41 Accordingly, in my view, Mr Nyoni has no, let alone a reasonable, prospect of succeeding in his claim against the second respondent at trial. 42 Therefore, Mr Nyoni's application against the second respondent is dismissed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 22 November 2016