FEDERAL COURT OF AUSTRALIA Nyoni v Pharmacy Board of Australia (No 3) [2016] FCA 1398 File number(s): WAD 357 of 2014 Judge(s): SIOPIS J Date of judgment: 25 October 2016 Catchwords: CONSUMER LAW – publication by the third respondent of conditions on the registration of the applicant as a pharmacist – whether the conditions were misleading or deceptive or defamatory of the applicant – the conditions were subsequently varied – application for an interlocutory injunction removing the conditions – whether there was a prima facie case – whether irreparable harm would be suffered by the applicant. Legislation: Poisons Act 1964 (WA) Sch 8 Cases cited: Nyoni v Pharmacy Board of Australia [2015] FCA 196 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: 22 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: The Second Respondent did not appear. ORDERS WAD 357 of 2014 BETWEEN: EMSON NYONI Applicant AND: PHARMACY BOARD OF AUSTRALIA First Respondent 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 applicant's application for interlocutory injunction is dismissed. 2. The applicant is to pay the costs of this application in any event. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SIOPIS J: 1 This is an application for an interlocutory injunction by Mr Emson Nyoni who is a registered pharmacist in Western Australia. 2 In November 2014, Mr Nyoni commenced a proceeding in this Court in which he claimed that the first and third respondents had engaged in misleading or deceptive conduct, and were liable for defamation, as well as malicious falsehood. The impugned conduct comprised the imposition by the first respondent of nine conditions on Mr Nyoni's registration to practise as a pharmacist, and the publication by the third respondent on its website of these conditions. 3 These conditions came to be imposed by the first respondent as a consequence of Mr Nyoni being convicted in 2013 in the Magistrates Court of offences under the regulations passed under the Poisons Act 1964 (WA). The convictions related to deficiencies in the way in which Mr Nyoni had stored Schedule 8 drugs, and maintained the register of Schedule 8 drugs at the Kellerberrin pharmacy when he carried on business as the owner of that pharmacy. Schedule 8 drugs are addictive drugs. 4 The convictions led to the revocation by the Department of Health of Western Australia of Mr Nyoni's authority as a pharmacist to deal with Schedule 8 drugs under the Poisons Act. The department then informed the third respondent of this circumstance and some months later the first respondent imposed the conditions on Mr Nyoni's registration as a pharmacist. The third respondent then published the fact of the imposition, and the nine conditions, on its website. 5 It is the first condition in the list of the conditions which was of particular concern to Mr Nyoni. That condition was to the following effect: 1. The Registrant is prohibited from taking or self administering Schedule 8 drugs, save for those that may be legally prescribed for him. 6 In his originating application, which Mr Nyoni commenced in November 2014, Mr Nyoni contended that the prominence of the first condition at the head of the other conditions would cause a reasonable reader of the third respondent's webpage entry to entertain the impression that the other conditions were related to, and had been imposed, consequent upon Mr Nyoni having been found guilty of improperly or unlawfully taking or self-administering the Schedule 8 drugs or because he was an addicted drug taker. 7 Mr Nyoni went on to contend that such an imputation was false and defamatory as well as constituting misleading or deceptive conduct and malicious falsehood. Mr Nyoni claimed a mandatory injunction for the removal of the conditions and damages. 8 On 14 January 2015, Mr Nyoni also applied for interlocutory orders that the respondents remove the conditions which had been imposed on him and the attendant publication on the third respondent's website. Mr Nyoni also sought an order for an interim payment of $150,000 to be paid forthwith. 9 I heard Mr Nyoni's interlocutory application on 5 February 2015 (Nyoni v Pharmacy Board of Australia [2015] FCA 196). 10 As is recorded in my reasons for judgment, I declined to grant Mr Nyoni's application for the interlocutory injunction on the basis that Mr Nyoni had not demonstrated that he would suffer irreparable harm pending trial. This was because Mr Nyoni had not adduced evidence of any job applications he had made which had failed by reason of the potential employer believing Mr Nyoni to be an addicted drug taker or someone who had self-administered Schedule 8 drugs, or had otherwise been influenced by the publication of those conditions. Nor had Mr Nyoni produced any evidence of any job applications he had made which were pending. Further, it was then anticipated that Mr Nyoni's originating application would come to trial in May 2015. 11 As it transpired, Mr Nyoni's application did not come to trial in May 2015. 12 However, in July 2015, after consultation with Mr Nyoni, the first respondent voluntarily removed the first condition which had previously been imposed on Mr Nyoni's registration as a pharmacist. The third respondent also removed that condition from the conditions published on its website. 13 On 6 September 2016, Mr Nyoni gave oral notice during a directions hearing that he wished to renew his application for an interlocutory injunction. Directions were made to facilitate the hearing of that application. Each of the parties subsequently filed affidavits and submissions. 14 In order for Mr Nyoni to succeed on his interlocutory application, Mr Nyoni has to establish, first, that there is a prima facie case in support of his claim for the injunction, and, secondly, that the balance of convenience favoured the granting of the interlocutory injunction. 15 I deal, first, with the question of whether Mr Nyoni has shown that there is a prima facie case. This question must be considered in the context that the mandatory interlocutory injunction which Mr Nyoni seeks, is essentially final relief, and also by reference to the conditions on the third respondent's website as they currently stand, namely, after the voluntary removal of the first condition. Mr Nyoni has previously argued, that it is the first condition, as it formerly stood, which gave colour to the remaining conditions. That, in my view, is a reasonable argument. However, in the absence of the former first condition, Mr Nyoni's argument does not demonstrate a sufficiently strong case that a reasonable reader of the conditions would conclude that Mr Nyoni is an addicted drug taker, such as to warrant the grant of what is, in effect, final relief in the form of a mandatory injunction. 16 Secondly, as to the question of balance of convenience and irreparable harm, Mr Nyoni has not adduced any evidence to show that he has any pending job applications which may be influenced by the imputations arising from the publication of the conditions which he alleges. 17 Mr Nyoni did, however, adduce evidence of failed job applications. However, that evidence did not show that these job applications were unsuccessful because the potential employer believed that Mr Nyoni was an addicted drug taker. 18 There is, therefore, no evidence before the Court which justifies the conclusion that Mr Nyoni would suffer irreparable harm between now and the trial, if the interlocutory injunction was not granted. 19 The balance of convenience does not favour the grant of the mandatory interlocutory injunction sought by Mr Nyoni. 20 Mr Nyoni also complained that he had been prejudiced by the respondents engaging in diversionary tactics by making interlocutory claims which have delayed the matter getting to trial. I do not accept that this delay has prejudiced Mr Nyoni by prolonging the period during which the impugned former first condition was published on the third respondent's website. This is because, as I have said, the impugned first condition was voluntarily removed by the first and third respondents in July 2015. If, however, Mr Nyoni has suffered prejudice, then he will have an opportunity at trial to seek relief in relation thereto. 21 In those circumstances, Mr Nyoni's application for an interlocutory injunction is dismissed. 22 I will order that Mr Nyoni pay the costs of this application in any event. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 22 November 2016