Dennis, P. v Pharmacy Guild of Australia

[1991] FCA 449

NEW SOUTH WALES DISTRICT REGISTRX

- ) No. NI10 of 1991

BETWEEN :  PETER DENNIS

Applicant

AND :	pHARM&CY GUILD OF AUSTRALIA First Respondent
AND :	AUSTRALIAN ELECTORAL COMMISSION Second Respondent
AND :	PONNA LOUISE McKINNIS
Intervener/Cross-Claimant
AND:

-

Cross-Respondent

CORAM :  WILCOX J

M: SYDNEY

!x!m: 29 JULY 1991

EX TEMPORE REASONS FOR J -

This is an application for an inquiry into an election for an office in the Pharmacy Guild of Australia, New South Wales Branch. The Pharmacy Guild of Australia is an organisation of employers registered under the Jndustrial

was an unsuccessful candidate at the election.

tions Act 1988. The Application was filed on 8 April 1991. It challenged an election, declared on 16 October 1990, whereby Donna Louise McKinnis was declared elected as one of the members of the Committee of the New South Wales Branch of the organisation. The applicant for an inquiry, Peter Dennis,

Pursuant to leave granted by me, an amended Application was filed on 13 June 1991, adding a second ground of challenge; that is to say a second alleged irregularity. A further amendment, to add a third ground, was foreshadowed during the course of the hearing today. But the solicitor for the applicant has indicated that this amendment is not pursued. I therefore need not deal with that further foreshadowed ground of attack upon the result of the election.

The first alleged irregularity turns upon the proper construction of the rules of the organisation. It is necessary to refer to the terms of r.6, which governs eligibility for membership of the organisation, and also r.74, governing eligibility for election as a Committee member. Those rules must, of course, be read in their context, as part of the rules as a whole and with reference to such definitions as are applicable. Rule 6(a)(i) reads:

"Any person, partnership of persons, association of persons, company or estate

of a deceased person, excepting any
Friendly Society, Dispensary or Lodge

Dispensary, being an employer and as such carrying on the business and profession of a pharmacist, individually or in partnership, in private practice within the Commonwealth of Australia and/or its territories, shall be eligible for membership."

Paragraph (ii) deals with the procedure necessary to be adopted in the case of an application for membership by a partnership or by a company. Paragraph (iii) provides that a

person elected as Executive Director or a Branch Director of the Guild shall be deemed to be a financial member of the Guild during the term of his office.

The point which should be noted about r.6 is that it provides, in sub-rule (a) an exhaustive statement of the persons who are eligible for membership of the Guild. The relevant criteria are that the person concerned be, firstly, an employer and, secondly, as such carry on "the business and profession of a pharmacist".

During the course of his submissions, the solicitor for the applicant suggested a distinction between carrying on the business of a pharmacist and carrying on the profession of a pharmacist. I must say I have some difficulties about that distinction. It seems to me that the activity of a retail pharmacist, the activity to which this sub-rule is directed, involves both business aspects and professional aspects. A

pharmacist carries on work arising out of his or her

professional training, particularly the dispensing of drugs	and advising of customers regarding treatments. But modern
retail pharmacies also sell a wide range of goods, the sale of which does not require any pharmaceutical background and which are often carried by businesses of a different nature. I think that the words of the sub-rule merely acknowledge the fact that, in modern practice, the operation of a retail pharmacy is both a business and a profession.
Rule 6A deals with overseas associates and r.6B refers to a student in a pharmacy school or an employed pharmaceutical chemist. The only relevance of these rules is that they substitute the description, "pharmaceutical chemist", for pharmacist. In this connection, it is relevant to note that the term "pharmaceutical chemist" is defined in r.2 in the following terms:

"'Pharmaceutical chemist' is a person who is registered to practice the profession of pharmacy in a State of the Commonwealth of Australia."

The rules do not define the word "pharmacist".

The submission on behalf of the applicant is that, at the time of her nomination and election, MS McKinnis was not a person eligible to be a member of the Guild and therefore eligible to stand for office, because she was not then registered as a pharmacist under the Pharmacv Act 1964, (NSW). It is said that the word "pharmacist" in the

eligibility rule (r6(a)(i)) means registered pharmacist; a	"pharmacist" being the same thing as a "pharmaceutical
chemist".
The factual position is that MS McKinnis was educated in pharmacy in Victoria where she graduated with the degree of Bachelor of Pharmacy at the Victoria College of Pharmacy. She was registered as a pharmacist in that State in the year 1982. She came to New South Wales in 1987 and became registered in New South Wales. At that time, MS McKinnis allowed her Victorian registration to lapse.
It appears that, in 1989, Ms McKinnis' name was removed from the roll of registered pharmacists in New South Wales. The circumstances of the removal do not reflect upon her professional competence, but simply arise out of the fact that the necessary fee was unpaid. There is a dispute between MS McKinnis and the Pharmacy Board of New South Wales, which administers the registration procedure and imposes the renewal fee, as to whose fault this was. As part of the present proceeding, MS McKinnis filed a cross-claim designed to obtain a declaration from the Court that she ought to have been regarded as a registered pharmacist at the relevant time. By agreement between the parties, the investigation was postponed until consideration of the construction of the rules. Consequently, the question of responsibility for MS McKinnis' name being removed from the roll has not been litigated and I say nothing further about it. It is simply enough to note
that, as a matter of fact, her name was not on the roll at the relevant times. This is critical to the submission put by the
applicant, because, as I have already said, his case is that the word "pharmacist" in r.6(a) (i) has the same meaning as the words "pharmaceutical chemist", as defined in r.2; that is to say, a person registered to practice the profession of pharmacy in a State of the Commonwealth of Australia.
It is conceded by MS McKinnis that, at the relevant times she was not registered in any State of Australia other than New South Wales.
I do not think that it is correct to say that the word "pharmacist" in r.6(a) is synonymous with the words "pharmaceutical chemist", as defined.
I note that the Macquarie Dictionary, which was referred to by the solicitor for the applicant, sets out the following definition of the word "pharmacist":

"one skilled in pharmacy; a druggist or

pharmaceutical chemist".

It is apparent that, in its ordinary meaning, the word "pharmacist" does not involve the notion of registration or entitlement to practice.

Over the objection of counsel for Miss McKinnis, I admitted affidavit evidence, read by the solicitor for the	applicant, from two experienced pharmacists as to the use
within the industry of the words "pharmacist" and "pharmaceutical chemist": see R v Williams: Ex ~ a r t e Australian Buildina Construction Em~loveeS' and Building Labourers Federation (1983) 153 CLR 402 at p.408. The essence of their evidence was that these words were interchangeable. In response to this evidence, evidence was called from three other pharmacists, to the contrary effect.
It was interesting to observe that the first two witnesses were older people, who had qualified under the system which applied until about 1960, apparently in all Australian States, whereby pharmacists obtained their qualification by attending a university course at the completion of which they received a diploma rather than a degree; and they then had to sit for examinations set by the relevant Pharmacy Board. At the end of that time, the person became entitled to use the letters PhC MPS; that is, Pharmaceutical Chemist, Member of the Pharmaceutical Society. In about 1960, degree courses were introduced to the various universities. Thereafter graduates received the degree of Bachelor of Pharmacy. It appears that people who qualified under this new system tend to refer to themselves as pharmacists rather than pharmaceutical chemists, perhaps to distinguish themselves from their predecessors who were not recipients of degrees. In any event, the position seems to be that, at the present time, the words are used in different ways by different people in the profession. I do not think it
the two terms are synonymous. can be said that there is an industry-wide understanding that However, this is not my primary reason for rejecting the submission put on behalf of the applicant. I do not think that the case turns upon the question whether, as a matter of ordinary usage, "pharmacist" is synonymous with "pharmaceutical chemist". The relevant question, for present purposes, is the meaning of "pharmacist" in r.6 (a) (i) . And it
is clear from the terms of that paragraph that an employer who is not a natural person, but who carries on the business and
profession of a pharmacist, may be a member of the society. In terms, the paragraph permits a company or the estate of a deceased person to be eligible for membership. Yet it is common ground that in no State in Australia is it possible for a non-natural person to be registered as a pharmacist.
As the solicitor for the applicant was driven to concede, it follows that, to argue that the word "pharmacist" in para.(i) is equivalent to the words "pharmaceutical chemist", in the defined sense, inevitably means that the reference to a company or an estate of a deceased person was unnecessary and misleading.
I think that it would be unreasonable to construe the word "pharmacist" in such a manner as to lead to that result. It seems to me significant that the draftsman chose to use the word "pharmacist" in a context where it was
person capable of being registered as a pharmacist under necessary to indicate a wider meaning than a reference to a
relevant State legislation. Had the draftsman intended to refer only to a registered person, it would have been natural to use the words "pharmaceutical chemist" in r6(a)(i), and thus pick up the definition contained in r.2.
The second significant rule is that dealing with eligibility for nomination to a Branch Committee. This is r.74. Sub-rule (d) of that rule provides:

"Any financial Member who is a pharmacist shall be eligible as a candidate for election as a member of Branch Committee unless disqualified by any of the provisions of rule 74(e)."

Rule 74(e) sets out circumstances under which the position of a Committee member shall be declared vacant. One of these circumstances, from para. l, is where the relevant person ceases to be eligible for membership of the Guild.

The question which arises under r.74(d) is whether the word "pharmacist" in that context is limited to a registered pharmacist. Once again, if this had been intended, it would have been simple to ensure this result by using the words "pharmaceutical chemist"; thus bringing in the r.2 definition. But this course was not taken. I do not think

that I should construe the rule in a way which would narrow	its ambit, given the fact that the draftsman has apparently
deliberately elected not to take that course. There may have been good reasons for permitting persons who were not registered, or not yet registered, to stand for election as a member of the Committee, particularly bearing in mind that the organisation is an organisation of employers for industrial purposes. It is not an organisation devoted to aspects of
professional practice as, for example, is the Pharmaceutical Society of Australia.
Reference was made by the solicitor for the applicant to a number of other provisions of the rules including r.36 which deals with termination of membership. Sub-rule (i) provides that:

"Membership of the Guild should be automatically terminated immediately a member ceases to be eligible for membership under the provision of these

Rules. "

I do not think that this advances the argument any distance. It brings the reader back to r.6 in determining eligibility.

One other matter which was put by the solicitor for
the applicant, and which I felt was possibly his best point,

was his reference to form 6. Form 6 is a prescribed form of

nomination for the position of Branch Committee member. That	form, as prescribed in the rules, contains a number of
prefatory statements, one of which reads as follows:

"Any pharmaceutical chemist who is a financial member of the Guild shall be eligible to be nominated as a candidate for election as a member of the Branch Committee."

As the solicitor said, this form uses a term which is defined by the rules, and defined in terms of registration under the relevant State legislation.

There is no doubt that, if this term had been used
in the rule itself, the position would have been as he

contended: a candidate for election would have had to be registered under the State legislation. The solicitor argued that it did not matter that the words "pharmaceutical chemist" appeared only in the form; as the form is prescribed by the rules it should be read as part of the rules and, in effect, allowed to govern the result. As I say, I think that there is some attraction in this argument. But, in the end, I am not persuaded by it. If there is any inconsistency between the terms of the rules and the terms of a prescribed form, the former must prevail. There is an inconsistency. Under those circumstances one can only read the prescribed form as reflecting an erroneous understanding of the requirement of the rules.

The second point which was argued on behalf of the applicant is that an irregularity occurred because the returning officer used a form of nomination which departed from r.6. The major change, at least for present purposes, is that the returning officer left off the nomination form issued to prospective candidates the paragraph which I have just quoted. The argument put on behalf of the applicant runs into a difficulty. The applicant does not need this alternative argument if his first proposition is correct. But, if his first proposition is incorrect, the returning officer acted correctly in leaving off the relevant paragraph, because that paragraph mis-stated the true position. The returning officer was, of course, entitled to depart from the rules for the purpose of avoiding an irregularity: see s.215(l)(b) of the Industrial Relations Act. Consequently, it seems to me that this argument must fail at the threshold. But, in any event, as is conceded on behalf of the applicant, there is no material before the Court which would lead to the conclusion that, if this was an irregularity, it affected the result of the election. Consequently, by virtue of s.223(4) of the ,Sndustrj&J-&?lations Act, the Court ought not to intervene by declaring the election, or any step taken in relation thereto, to be void or to declare MS McKinnis not to be elected.

I am of the opinion that no irregularity has been
shown and that the appropriate order is that the Application

be dismissed. It follows from this that it is not necessary

Board. As I understand the position, she accepts that under	for MS McKinnis to pursue her cross-claim against the Pharmacy
those circumstances the cross-claim ought also to be dismissed.
No question of costs arises, except that an application is made for a certificate under 8.343 of the Industrial Relations Act. Sub-section (1) of that section empowers the Court to certify that an applicant for an inquiry
acted reasonably in applying to the Court in a situation where it is of that opinion, but the Court has found that no
irregularity happened.
I think that it is appropriate to grant such a certificate. The question which was argued turned upon a matter of construction of the rules which was not free from
difficulty. I can understand that Mr Dennis may have felt
that there was a prospect that the election of MS McKinnis was irregular. Accordingly I grant such a certificate. Otherwise the application is dismissed.
I certify that this and the preceding twelve pages are a true copy of the Reasons for Judgment of the Honourable Justice Wilcox.
Associate: 1.
Dated:  27 July 1991

APPEARANCES

Solicitor appearing for the Applicant: R. McClelland

Solicitors for the Applicant:	Turner Freeman
Counsel for the First Respondent:	C. Stevens
Solicitors for the First Respondent:	Webeck Farland Pender
Counsel for the Second Respondent:	B. Skinner
Solicitors for the Second Respondent:	Australian Government Solicitor
Counsel for the Intervener/Cross-

Claimant:  A. Robertson

Solicitors for the Intervener/Cross-

Claimant:  Blake Dawson Waldron

Counsel for the Cross-Respondent:	B. Camilleri
Solicitors for the Croee-Respondent:	State Crown Solicitors Off ice
Date of hearing:	27 July 1991