Dyson v Pharmacy Board

[2000] NSWSC 981

Reported Decision: [2000] 50 NSWLR 523

New South Wales

Supreme Court

CITATION:	Dyson v Pharmacy Board [2000] NSWSC 981
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 1238/00
HEARING DATE(S):	19 October 2000
JUDGMENT DATE:	24 October 2000
PARTIES :	Lyndon Edward Dyson (Trading as Pharmacy Plus) (P) Pharmacy Board of New South Wales (D)
JUDGMENT OF:	Austin J

COUNSEL :	S Gageler (P) I Wallach (D)
SOLICITORS:	Russell Kennedy by their agent Dibbs Crowther & Osborne (P) C M Campbell (D)
CATCHWORDS:	EVIDENCE - as to meaning of words in a business name - expert opinion evidence - admissibility of evidence by a lexicographer - application of ultimate issue rule - effect of Evidence Act
LEGISLATION CITED:	Evidence Act 1995 (NSW) ss 76, 80, 135 Pharmacy Act 1964 (NSW) ss 3, 24A, 24C, 25 Pharmacy Regulation 1998 Reg 16 Supreme Court Act 1970 (NSW) ss 65, 69
CASES CITED:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 Campomar Sociedad v Nike International Ltd (2000) 169 ALR 677 Incorporated Council of Law Reporting for England and Wales v A-G [1972] Ch 73 Incorporated Council of Law Reporting of the State of Queensland v Federal Commissioner of Taxation (1971) 121 CLR 659 Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 O'Brien v Gillespie (1996) 41 NSWLR 549 Pepsi Seven-up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 Pharmaceutical Society of Great Britain v Dickson [1970] AC 403 Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 Re Tooth & Co Ltd (1978) 31 FLR 314 Taco Co of Australia v Taco Bell Pty Ltd (1982) 42 ALR 177 Walton v Corporate Venture Pty Ltd, 6 June 1996 White v District Court of NSW (Court of Appeal of New South Wales, unreported, 3 December 1998)
DECISION:	Limited declarations as sought by plaintiff; limited mandatory order.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 24 OCTOBER 2000

1238/00 . LYNDON EDWARD DYSON (TRADING AS PHARMACY PLUS TUMUT) V PHARMACY BOARD OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: The plaintiff has taken these proceedings in order to establish that the use of the business name ‘Pharmacy Plus Tumut’ does not contravene regulations made under the Pharmacy Act 1964 (NSW) (‘the Act’). The defendant Board, which is the corporation constituted by s 4 of the Act, contends that the business name implies superiority for the plaintiff in the practice of pharmacy, contrary to reg 16 (2) (d) of the Pharmacy (General) Regulation 1998 (‘the Regulation’). The plaintiff seeks declarations that trading and advertising using the business name, the display of the name and the use of adhesive labels which include it, do not constitute breach of the regulation. He also seeks orders in the nature of mandamus, the general purpose of which is to require the Board to include the business name in its Register of Pharmacies.

2 The plaintiff carries on the business of a pharmacist at premises situated in one of the main streets of Tumut. He sells both pharmaceutical and non-pharmaceutical products at the premises. The business name ‘Pharmacy Plus Tumut’ is registered under the Business Names Act 1962 (NSW).

3   The words ‘Pharmacy Plus’, followed by a large yellow and red plus sign are prominently displayed above the entrance to the premises and on the front and side of the awning which extends over the pavement. They also appear on the adhesive labels which are affixed to products sold on the premises.

Statutory Scheme


4 The Act constitutes the Pharmacy Board and gives it the functions of (inter alia) promoting and maintaining the highest standards of professional conduct and ethics in the pharmacy profession, and the general administration of the Act: s 5.

5 Section 24C says that a person must not carry on the business of a pharmacist at any premises unless the premises are the subject of a current approval by the Board, and the owner of the premises is registered in the Register of Pharmacies. Section 24A deals with the procedure for an application for approval of premises or registration of an owner. Where an application is made, the Board may either reject the application or approve the premises or direct that the owner be registered. Section 24A (6) requires the Board to keep a register containing particulars of approved premises and registered owners, to be called the Register of Pharmacies.

6 There is no express or implied requirement for the Register to contain particulars of the business name used by the owner for carrying on the business of a pharmacist at the approved premises. Neither the Act nor the Regulation contains any provisions specifying the particulars to which s 24A (6) refers, beyond the words of s 24A (6) itself. The statutory requirement is for the Register to contain ‘particulars of approved premises and registered owners’.

7 The plaintiff submits that it is beyond the power of the Board to keep a record of business names as ‘particulars’ in the Register. I agree with this submission to the extent that, in my view, the business name under which the registered owner carries on the business of a pharmacist at the approved premises is not one of the ‘particulars’ to which s 24A (6) refers. It is neither ‘particulars of approved premises’ nor ‘particulars... of registered owners’.

8 However, in my opinion s 24A (6) does not limit the contents of the Register to the particulars to which it refers. The Register is to be kept by the Board. The Board has broad statutory responsibilities under s 5, and I see no reason why it should not use the Register as a means of discharging its responsibilities, if it thinks it appropriate for that purpose to record additional information, provided of course that it acts lawfully and in good faith. My view on this point accords with the defendant's submission, except that I do not see the relevance of the statutory definitions of ‘business of a pharmacist’ and ‘pharmacy’, or the decision in White v District Court of NSW (Court of Appeal of New South Wales, unreported, 3 December 1998) to this issue.

9 The plaintiff submits, in the alternative, that the Board has a ministerial duty under s 24A to record in the Register the actual particulars of an approved pharmacy. The plaintiff says that the Board cannot refuse to fulfil that duty simply because it does not like the particulars or because it considers that the registered owner may be in breach of the Act or the Regulation. The short answer to that submission is that there can be no such duty unless the business name is a particular that the Board is required to record under s 24A (6), and I have held that this is not the case.

10 Section 25 prohibits a person other than a pharmacist from having an interest in a pharmacist's business. Section 26 prevents a pharmacist from having an interest in more than three pharmacy businesses, or as a member of more than one partnership of pharmacists. Section 27 requires a pharmacist to be in charge of every pharmacy. Breach of the Act (or the Regulation) may result in prosecution by a person authorised by the Board for that purpose: s 35 (2).

11 The Pharmacy (General) Regulation 1998, which repealed and remade the Pharmacy (General) Regulation 1993, makes provisions concerning the registration of pharmacists, the requirements to be observed in the conduct of pharmacies, and other ancillary matters. Part 3 deals with pharmacies, setting out the standards to be complied with for approval of a pharmacy business, arrangements for after-hours pharmacies, provisions concerning the equipment to be kept in a pharmacy and (in reg 16) restrictions on advertising a pharmacy business.

12   Regulation 16 (1) requires the owner of a pharmacy to display the name of the pharmacist in charge, and reg 16 (2) and (3) are in the following terms:
‘(2) An advertisement that relates to a pharmacy or pharmacy services must not:
(a) be false, misleading or deceptive, or
(b) create an unjustified expectation of beneficial treatment or give any warranty of satisfaction, or
(c) promote the unnecessary or inappropriate use of pharmacy services, or
(d) claim or imply superiority for a pharmacist in the practice of pharmacy.
(3) A person who publishes, or causes to be published, and advertisement in contravention of subclause (2) is guilty of an offence. Maximum penalty: 2 penalty units.’
13 Similar provisions were previously contained in reg 14 of the Pharmacy (General) Regulation 1993 (NSW). In particular, reg 14 (2) of the 1993 Regulation provided, relevantly, as follows:
‘(2) A person carrying on a pharmacy business:
(a) must not, any advertisement, name or imply professional superiority or give any warranty of satisfaction, purity of drugs or accuracy in dispensing...’.
14 The earlier regulation is relevant because the plaintiff began to use the business name ‘Pharmacy Plus Tumut’ when the earlier regulation applied. I do not see any relevant decision between the construction of the old reg 14 (2) (a) and new reg 16 (2) (d), and none was advanced in argument. The construction that I take of the new regulation is applicable, in my view, to the construction of the old regulation.

The dispute


15   The Register of Pharmacies, as currently kept by the Board, includes particulars of the name of each pharmacy. In 1998 the plaintiff applied to the Board for approval of the Tumut premises as suitable for carrying on the business of a pharmacist, and for his registration as the owner of the business. On 13 May 1998 the Board approved the Tumut premises as suitable for carrying on the business of a pharmacist, and registration the plaintiff as the owner of the business. However, the Board invited the plaintiff to reconsider the proposed name having regard to the regulation which is now reg 16 (2) (d).

16   After further correspondence, the Board recorded the pharmacy name as ‘Tumut Pharmacy’ and informed the plaintiff that it was ‘not prepared to register the name Pharmacy Plus’, and that it might ‘consider reviewing the continued registration of [the plaintiff's] pharmacy’. The only reason advanced by the Board for taking this approach and refusing to enter the name ‘Pharmacy Plus Tumut’ in the Register of Pharmacies was that its use would create ‘the impression that the pharmacy provides superior professional service in breach of’ what is now reg 16 (2) (d).

17   The principal question for me to determine is whether the plaintiff's use of the business name ‘Pharmacy Plus’ for trading and advertising, and on adhesive labels and otherwise, claims or implies superiority for the plaintiff as a pharmacist in the practice of pharmacy, for the purposes of reg 16 (2) (d).

Proper approach to the question of construction


18   The plaintiff submitted that I should take the same approach to this question as was adopted by the Full Federal Court in Taco Co of Australia v Taco Bell Pty Ltd (1982) 42 ALR 177. In that case the question was whether the appellants, by opening Mexican food restaurants in the name ‘Taco Bell’, engaged in misleading conduct, when the respondent already operated a Mexican food restaurant in Bondi called ‘Taco Bell's Casa’. The court had regard to the section of the community who might be misled by the appellants' conduct (essentially, potential restaurant diners in the eastern suburbs or perhaps the whole of metropolitan Sydney). Although that question was rather different from the question posed by the present case, in my view that principle is applicable here, subject to one qualification.

19   In my opinion the question whether an advertisement breaches reg 16 (2) (d) is to be determined objectively by reference to the language used in the regulation. The question is not whether the plaintiff intended, or any particular person subjectively believed, that the name ‘Pharmacy Plus’ claimed or implied superiority for the plaintiff in the business of pharmacy, but whether that claim or implication arose objectively out of the plaintiff's use of the name. However, in making that assessment the court should consider the section of the public who are likely to be reached by the advertising or display of the name. To that extent the approach taken in the Taco Bell case, at 181 and 202, is applicable here.

20   My qualification is this. In the Taco Bell case Deane and Fitzgerald JJ said (at 202, citing Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73, 93, and other authority) that the question of misleading conduct was to be considered by reference to the section of the public who are affected by the conduct - including ‘the astute and gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations’. Where the question is whether words or conduct have an inherent quality that would be perceived by the relevant community as a whole (such as to claim or imply superiority, or to mislead), rather than whether conduct involving the use of words has had an effect on one or more particular individuals, it seems to me inappropriate to consider the gullible, the unintelligent, or the uneducated. Instead the question relates to how ordinary, reasonable members of the relevant section of the community would respond to the words - in the present case, whether ordinary, reasonable members of the Tumut community in which the plaintiff uses the name ‘Pharmacy Plus’ would take him to be making or implying a claim to superiority for himself in the practice of pharmacy.

21   That, in effect, was the conclusion reached by the whole of the High Court of Australia in their joint judgment in Campomar Sociedad v Nike International Ltd (2000) 169 ALR 677, another s 52 case. Having drawn attention to the distinction between representations to identified individuals and representations to the public or a section of the public, their Honours remarked that in the latter case the court identifies the ‘ordinary’ or ‘reasonable’ members of the class of prospective purchasers and objectively attributes certain characteristics to them (at 704). The court ‘may well decline to regard as controlling the application of s 52 those assumptions by persons whose reactions are extreme or fanciful’, since ‘the initial question which must be determined is whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the classes of prospective purchasers’ (at 705). Although they did not cite the observations in Puxu and Taco Bell as to the relevance of misunderstandings by the gullible or unintelligent or uneducated, it seems to me plain that their Honours disagreed with those observations.

22 Therefore the question for determination is whether the plaintiff's conduct in displaying and otherwise using the business name ‘Pharmacy Plus’ implied to ordinary, reasonable members of the Tumut community a claim to superiority for the plaintiff in the practice of pharmacy. The question is one of fact to be determined by the court, with the aid of such tools of interpretation as dictionary definitions. It is not a question upon which direct evidence by retailers or consumers or other members of the community would be regarded as relevant, there being no claim that the words of the Regulation have any trade or other special usage and no basis for suggesting that such evidence is merely evidence of the context in which the words are used.

Admissibility of linguistic evidence


23   In the present case the defendant invited the court to admit evidence by an expert lexicographer, Ms Alison Moore, who is the Executive Editor of the Macquarie Dictionary. Ms Moore prepared a report expressing her opinion, as a matter of linguistics, on the current usage of the word ‘Plus’, considering whether the word ‘Plus’ when used in the name of the pharmacy business, Pharmacy Plus, implies or raises any notion of superiority vis-a-vis another pharmacy business. The plaintiff contended that Ms Moore's affidavit evidence was inadmissible because her opinion was irrelevant, and also because the meaning of the word ‘Plus’ is a question to be resolved by the court itself, upon which evidence is not admissible.

24   The evidence which Ms Moore would give is as follows:
‘The word ‘Plus’ when used in the name of a business can be descriptive. It can indicate that the goods and/or services offered by the business go outside the goods and/or services contemplated by the descriptive elements of the name eg. ‘Soup Plus’ is a restaurant offering soup based meals and jazz music.
‘Plus’ has also acquired a meaning of improved or better in comparison with the similar goods/services not having ‘Plus’ in their name eg. with software names. The addition of the word ‘Plus’ can imply that it is a better version ie. has more attributes or has better features that its predecessor bearing a similar name without the word ‘Plus’.
Applying this latter usage to the name ‘Pharmacy Plus Tumut’, the word ‘Plus’ could imply that the business offers a larger, more varied or better range of goods and/or services [than] offered by a business called, for example, ‘Tumut Pharmacy’. In this sense the use of ‘Pharmacy Plus’ in a pharmacy name could be said to imply a claim of superiority of a general nature of services and/or products available at that pharmacy in comparison with those available at other pharmacies.’

25   In Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348, 387ff, Gummow J considered the principles of evidence relevant to the court's determination of an analogous question. The case was decided before the statutory reforms made by the Evidence Acts of the Commonwealth and New South Wales. The question was whether the respondents' marketing conduct misled or deceived consumers, or was likely to mislead or deceive them, into believing the existence of a trade connection between the respondents and the appellants. He noted that the question was one for the tribunal of fact and was not a matter for any witness to decide (at 387). While the evidence of consumers and retailers is admissible if a special market is involved, and consumer evidence is admissible if it establishes the habits of purchasers, evidence cannot be given that the witness would (or believes others would) be misled or deceived.

26   Gummow J gave three reasons for this view. First, in the words of Lord Macnaghten in Payton & Co v Snelling, Lampard & Co [1901] AC 308 at 311, the judge ‘must not surrender his own independent judgment to any witness’ (at 388). Secondly, ‘that question is the very issue which the court has to determine’ (at 390). Thirdly, one cannot call an individual to give expert evidence as to human nature. The third consideration is relevant to a question such as whether misleading conduct has occurred, but is not relevant to the question whether a particular business name claims or implies superiority.

27   The question of admissibility of expert evidence of the matter in issue was considered by Hill J in Pepsi Seven-up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289. Since the matter in issue was the meaning of words used in a statute, the question for his Honour became one about the admissibility of expert evidence as to the meaning of words. His Honour identified a common law rule that ‘evidence cannot be given as to the meaning of an ordinary English word used in a modern statute’ (at 299), and noted some exceptions (not relevant here) by which evidence of trade usage may be admissible. Although the focus of his attention was statutory language, he expressed the opinion that the same principles apply to words used in a document.

28   He then questioned the logic underlying the common law rule. Without referring to the Interlego case, Hill J identified two possible explanations for the rule. He said (at 299):
‘The first is that the judge, whose task it is to interpret the statute, is presumed to know the English language. Given the wealth of the English language and the ever-changing use of words, that presumption may be questioned. Indeed the difficulty facing a judge is acknowledged in the rule that the Court is entitled to inform itself as to the meaning of words by consulting a dictionary, or by reference to works displaying the usage of the word. The judge is entitled to take judicial notice of such sources. But what is a dictionary if it is not the explanation of a word, usually on etymological principles, prepared by an expert in language or usage? If the dictionary may be used, why may the compiler of that dictionary not give evidence?’
29   Having rejected the first explanation for the rule for these reasons, Hill J turned his attention to the second explanation, that evidence cannot be given on the very matter which it is the task of the judge to decide, because the function of the tribunal is not to be usurped by a witness (at 300). This, it will be noted, encompasses the first and second points made by Gummow J in the Interlego case. Hill J pointed out that evidence as to the meaning of a word can be characterised either as opinion evidence or as evidence of the fact of usage. Without deciding which characterisation was correct, he referred to the provisions of the Evidence Act 1995 (Cth) dealing with opinion evidence. That led him to consider s 80, which provides:
‘Evidence of an opinion is not inadmissible only because it is about:
(a) the fact in issue or an ultimate issue; or
(b) a matter of common knowledge.’
30 It was unnecessary for Hill J to decide upon the scope of s 80, but he made some observations about it. He noted the view of the Australian Law Reform Commission in its Interim Report No 26 (para 743), to the effect that ‘if the evidence is relevant, then it should be admissible, even if it goes to the issue which the tribunal has to decide’ (at 301). He added: ‘it may well be that experience will lead to s 80 being given a restrictive interpretation...’, and said:

‘No doubt the Evidence Act operates to widen the circumstances in which expert testimony may be proffered. With both the common knowledge rule and the ultimate issue rule abolished, there would seem to be but two relevant obstacles to the admission of evidence going to the meaning of words as used in a statute. These would be (assuming the evidence is properly to be characterised as within the opinion rule enunciated by s 76), whether the testimony is relevant to the issue to be determined, that is to say the meaning of the particular word in the statute, and whether the witness does have specialised knowledge based on training, study or experience to support the opinion he or she is to give.
Generally the only special experience which a witness could have to give evidence as to the ordinary English meaning of a word would be linguistic study. Experience in a trade or industry in which the word is used would not suffice as appropriate expertise. The witness would still be no more qualified than any other person to give the evidence. Thus whether or not it would now be permissible for an expert linguist to give evidence as to the meaning of an ordinary English word, a question I have no need to decide here, the relaxation of the rules relating to expert evidence as contained in the Evidence Act do not have the consequence of making evidence of non-linguists admissible.
However, the Evidence Act does not represent a code of the law of evidence. Particularly, it would not preclude the admissibility of evidence of usage where that evidence was relevant to an issue in the case. But nor would it permit evidence of usage to be given if that evidence were precluded by the common law of evidence. Thus I do not see the conclusion to which I have come as in any way affected by the Evidence Act.’

31   Two observations should be made about the significance of Hill J's reasoning for this case. First, Ms Moore's evidence is expressed as an expert opinion as a matter of linguistics. She does not purport to give evidence of actual usage. The admissibility of her evidence must be determined by reference to the law of opinion evidence. Secondly, her expertise in linguistics has not been challenged. Therefore on Hill J's analysis the only question for me to decide is whether her evidence is relevant.

32 The meaning of s 80 of the Evidence Act 1995 (NSW), which is identical with the Commonwealth provision, was considered by Levine J in O'Brien v Gillespie (1996) 41 NSWLR 549. In a professional negligence case, a solicitor swore an affidavit as to the practice of solicitors, which Levine J regarded as going to the issue for determination. He treated the evidence as opinion evidence, purportedly given by an expert, and referred to Hill J's analysis in the Pepsi Seven-up case. He observed that the restrictive interpretation referred to by Hill J was attractive. He disagreed with the view expressed by Miles CJ in an unreported decision in the Supreme Court of the Australian Capital Territory ( Walton v Corporate Venture Pty Ltd , 6 June 1996), to the effect that ‘the old rule that an expert may not express an opinion on the ultimate issue that a court has to decide, died long ago and was buried by s 80 of the Evidence Act 1995.’

33   Levine J. concluded (at 557):
‘The view to which I ultimately come is that the proposed testimony of this witness is on the essential matters of fact and law to be decided by the application of legal standards upon the evidence of the actual transactions which the court will hear and thus does no more than intrude upon the exercise of the essential judicial function.’

34 There may be room for debate whether his Honour's conclusions go beyond merely a restrictive interpretation of s 80. Some of his other remarks suggest that he regarded the particular evidence before him as irrelevant, as well as evidence to be excluded in the exercise of his discretion under s 135.

35 I respectfully agree with Hill J that, since s 80 has abolished the ultimate issue rule, the general position is that evidence going to an ultimate issue, which is tendered as expert opinion evidence, is admissible unless it is not relevant, or the witness does not have specialised expertise to support his or her opinion. As Levine J's judgment makes clear, evidence which is otherwise admissible may be rejected on discretionary grounds under s 135. However, there seems to be an exception to the general proposition where the evidence relates to the meaning of words.

36   In my opinion the common law rule that evidence cannot be given as to the meaning of an ordinary English word in a statute or document is not just an application of the rule that expert evidence may not be given of an ultimate fact in issue. It is a special and particular rule. To the extent I would respectfully disagree with Hill J's analysis. Perhaps the rule cannot be justified by the proposition that the judge is presumed to know the English language, for the reasons given by Hill J. But there may be another justification not dependent upon the proposition that the meaning of the word is an ultimate fact in issue. The justification may have to do with the special of responsibility of judges in interpreting the written word, which requires them to balance considerations relating to the context of particular words in a statute or document, the circumstances surrounding the making of the instrument, and admissible evidence about the intention of the authors. Whatever the justification may be, the rule is firmly established. As Jordan CJ said in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137, ‘the question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence...’.

37   Jordan CJ's formulation of the rule acknowledges that although expert evidence is inadmissible, the court may have regard to dictionaries and other books. As Hill J noted, the basis for this is unclear, and it might seem irrational that the written opinion of the expert lexicographer, expressed in the dictionary, is regularly referred to, but an affidavit by the lexicographer is generally inadmissible. It seems to me that the best explanation for the common judicial practice of referring to dictionary definitions, even when they are not cited by counsel, is that the dictionary is regarded as an established aid to be used in the judge's work, akin to the law reports rather than an item of evidence: cf Incorporated Council of Law Reporting of the State of Queensland v Federal Commissioner of Taxation (1971) 121 CLR 659; Incorporated Council of Law Reporting for England and Wales v A-G [1972] Ch 73.

38   My conclusion, therefore, is that a lexicographer's evidence about the ordinary meaning of a word used in a statute or document is generally inadmissible. However, though I have not discovered any direct authority for the proposition, it seems to me that there must be an exception to permit evidence to be given that the ordinary meaning of a word has changed since the last publication of the dictionary meaning. No traditionally published dictionary can keep up with changes to modern language, especially where new technology (such as the Internet and modern telephony) touches everyday lives. In an area where the court most needs assistance in giving a contemporary meaning to language, it must be permissible for it to receive expert evidence of a changed or new meaning.

39   To the extent, therefore, that Ms Moore's evidence purports to relate to the ordinary meaning of the word ‘plus’, it is inadmissible unless it is taken to assert that the meaning of those words has changed. The first of the three paragraphs set out above does not make that claim and is inadmissible. The second paragraph could be taken to make that claim, since it asserts that the word has acquired a secondary meaning out of its use in, for example, software names. I note that Ms Moore's sources for her opinion include the Internet, a citations database and ‘Ozcorp’, which she describes as the Macquarie Dictionary corpus of Australian English. I am entitled to infer that these sources are dynamic. On balance, I regard the second paragraph as admissible as evidence of a change to the meaning of the word ‘plus’.

40 The third paragraph is in a different category. Having stated her opinion as to the meanings of the word ‘plus’, Ms Moore purports to apply the secondary meaning to the plaintiff's use of the business name ‘Pharmacy Plus Tumut’, and then to draw a conclusion as to whether the use of the business name implies a claim to superiority of the kind to which the Regulation refers. Section 80 prevents this evidence from being rejected solely on the ground that it goes to the ultimate issue in the case. But Ms Moore's expertise as a lexicographer does not specially qualify her to express a conclusion about the lawfulness of the plaintiff's conduct, and in that sense the evidence in the third paragraph is not relevant to the issue which I must determine. In my opinion the third paragraph is inadmissible. I do not see any distinction between the first and second sentences of the paragraph.

41 I should add that if the third paragraph were otherwise admissible, I would reject it under s 135. While it is helpful to identify a secondary meaning of the word ‘plus’, having regard to the evolution of language since the last publication of the Macquarie Dictionary, it is not helpful to the court, and potentially embarrassing to the plaintiff, for the witness to express an opinion as to the application of the Regulation to the plaintiff's conduct, especially where the opinion is only that the use of the business name ‘could imply’ that the business offers a better range of goods and services and ‘could be said to imply’ a claim of superiority. If that evidence were admitted, it would be of no significant probative value.

The meaning and implication of ‘Pharmacy Plus’


42   The plaintiff contends that the words ‘Pharmacy Plus’ must be read in combination as the name of the plaintiff's pharmacy. The name is, according to the plaintiff, a composite noun, not a noun followed by an adjective, and bears no connotation beyond a pharmacy name such as ‘Amcal’. I disagree. The name ‘Pharmacy Plus’ has a descriptive content and is not simply a proper name. The plaintiff also submits, apparently in the alternative, that the words ‘Pharmacy Plus’ are mere puffery. Again, I disagree, since the name clearly has a descriptive content.

43   The plaintiff also contends, in the alternative, that if the business name has a descriptive content, it is not such as to claim or imply superiority for the plaintiff in the practice of pharmacy. I agree with this submission.

44   In my opinion an ordinary, reasonable member of the Australian community (including the Tumut community) would regard the word ‘pharmacy’ as referring to a place where medical pharmaceutical advice is given, prescriptions are filled and other medical goods are sold. While it would be expected that some non-medical goods would be sold at a pharmacy, the sale of those goods would be expected to be incidental or peripheral to the sale of medical goods. Dictionary definitions confirm this understanding. For example, the Macquarie Dictionary defines ‘pharmacy’ to mean a dispensary or a chemist's shop, and ‘dispensary’ is defined to mean a place where something is dispensed, especially medicines.

45 The defendant draws attention to the following definitions in s 3 of the Act:

‘ Business of a pharmacist means the business of a chemist, pharmaceutical chemist, pharmaceutist, pharmacist, druggist, homeopathic chemist, dispensing chemist or dispensing druggist.’

‘ Pharmacy means any premises in or on which a person carries on the business of a pharmacist and includes such portion (if any) of those premises in or on which the person sells or offers for sale goods of any kind, but does not include any such premises located in a hospital mentioned in the Second Schedule to the Public Hospitals Act 1929.’

46   White v District Court of NSW (Court of Appeal of New South Wales, unreported, 3 December 1998) related to s 25 (1) of the Act, which prohibits a person other than a pharmacist from having a pecuniary interest in the business of a pharmacist in a pharmacy. The Court of Appeal rejected an argument that for the purposes of s 25 (1), ‘the business of a pharmacist in a pharmacy’ is confined to the core business of dispensing or compounding medicines on prescriptions from medical practitioners. It held that each pharmacist is free to determine the scope of his or her business, and where it includes non-pharmaceutical goods, their sale forms part of the business of that pharmacist for the purposes of s 25 (1).

47   The defendant relies on that case and submits that it is not open to the plaintiff to argue that the words ‘Pharmacy Plus’ are merely descriptive of the range of products sold at a pharmacy. Having regard to the statutory definitions and White's case, the defendant submits that the word ‘pharmacy’ encompasses premises at which non-pharmaceutical goods are sold, and therefore the word ‘plus’ must signify some superiority in the availability of additional goods and services.

48   The flaw in this argument lies in the assertion that the word ‘Pharmacy’ in the expression ‘Pharmacy Plus’ is to be understood in the extended statutory sense. As I have indicated, the task for the court is to give those words the meaning they convey to ordinary, reasonable members of the community. Ordinary, reasonable members of the Tumut community, or for that matter the Australian community as a whole, would not have regard to the extended statutory definitions, let alone their interpretation in an unreported judgment of the Court of Appeal. They would regard the word ‘Pharmacy’ in the business name as having its ordinary signification.

49   In my opinion, taking into account the Macquarie Dictionary definition, the word ‘plus’ relevantly has a primary meaning and a secondary meaning. In its primary sense, the word ‘plus’ signifies the addition of something. The added ingredient does not necessarily improve what was there before, but simply adds to it. Thus, the Macquarie Dictionary gives the example, ‘I need some bread, plus I need some milk from the shops’. The Sydney restaurant ‘Soup Plus’ offers soup meals plus jazz music. A ‘Food Plus’ supermarket presumably offers food and other goods for sale. There is not necessarily any implied claim to superiority, except to the extent that having the additional item is an advantage. Thus, diners looking for a soup meal would regard Soup Plus as superior to another soup restaurant if they wished to hear jazz while eating, and customers would regard a Food Plus store as superior to a store that sold only food, if they wished to purchase non-food items.

50   There is a secondary meaning, in which the word ‘plus’ signifies an advantage, asset or gain. The example given by the Macquarie Dictionary is the statement, ‘the attitude toward the commission has turned around and I think people do see some of the pluses that have occurred as a result’. Ms Moore's evidence, to the extent that I have admitted it, indicates that the secondary meaning may have become more prominent in the context of the advertising language used in new technological areas such as computer software.

51 In my view, ordinary reasonable members of the Tumut community (or the Australian community as a whole) would interpret the word ‘plus’ in the expression ‘Pharmacy Plus’ in the primary rather than the secondary sense, unless there special circumstances about its use suggesting the secondary meaning. Absent special circumstances, they would regard the words as signifying that a ‘Pharmacy Plus’ pharmacy would sell non-pharmaceutical products not normally found in pharmacies generally. The use of the business name would not necessarily imply any claim to superiority for the pharmacist in the practice of pharmacy, for two reasons. First, offering additional non-pharmaceutical products is an advantage or source of superiority only if the customer wishes to purchase them. Secondly, the claim to superiority must, according to reg 16 (2) (d), be a claim ‘for the pharmacist in the practice of pharmacy’. The reference to the ‘practice of pharmacy’ appears to me to be a reference to the pharmacist's professional vocation. It is not a reference to the place at which the pharmacist's professional work is carried out. Therefore the definition of ‘pharmacy’ in s 3 of the Act seems to me inapplicable to reg 16 (2) (d).

Relief


52   The plaintiff submits that this is an appropriate case for declaratory relief because he is threatened, at least implicitly, with prosecution in relation to his trading activities, and is entitled to know where he stands. I agree, provided that the declarations relate to specific conduct and are not otherwise directed to hypothetical circumstances. The defendant Board, which is empowered to authorise prosecutions for relevant contraventions, has contended in correspondence that the term ‘Plus’ creates an impression that the plaintiff's pharmacy provides superior professional service in breach of the predecessor of reg 16 (2) (d), and has invited the plaintiff to provide reasons why the Board should not consider reviewing the continued registration of the plaintiff's pharmacy. The correspondence provides a sufficient basis for apprehension to justify the plaintiff bringing proceedings for declaratory relief to resolve the issue in contention between the parties: see generally Pharmaceutical Society of Great Britain v Dickson [1970] AC 403 at 433; Re Tooth & Co Ltd (1978) 31 FLR 314 at 331; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582.

53   The plaintiff seeks the following four declarations:
1. a declaration that trading by the Plaintiff in New South Wales under the business name of “Pharmacy Plus Tumut” did not, does not and will constitute a breach of clause 14 of the Pharmacy (General) Regulation 1993 or clause 16 of the Pharmacy (General) Regulation 1998 by the mere use of that trading name;
2. a declaration that any advertising by the Plaintiff in New South Wales using the words “Pharmacy Plus Tumut” and/or “Pharmacy Plus” did not, does not and will not constitute a breach of clause 14 of the Pharmacy (General) Regulation 1993 or clause 16 of the Pharmacy (General) Regulation 1998 by the mere use of those words in that advertising;
2A. a declaration that the display by the Plaintiff of the name “Pharmacy Plus” on the awning of his premises at 66 Wynyard Street, Tumut, did not, does not and will not constitute a breach of clause 14 of the Pharmacy (General) Regulation 1993 or clause 16 of the Pharmacy (General) Regulation 1998;
2B. a declaration that the use by the Plaintiff of the Pharmacy adhesive label a copy of which forms Annexure C to the affidavit of William Alexander Dean sworn 30 March 2000 on goods displayed for sale by the Plaintiff at his premises at 66 Wynyard Street, Tumut, in the state of New South Wales did not, does not and will not constitute a breach of clause 14 of the Pharmacy (General) Regulation 1993 or Clause 16 of the Pharmacy (General) Regulation 1998;’

54   The defendant submits that these declarations should not be made because they are hypothetical in nature. The defendant's complaint is that the declarations do not specify particular acts that, on the evidence, the plaintiff has undertaken or intends or threatens to undertake, so there is no specific conduct about which the Court can make a declaration of compliance or contravention.

55 It is true that the plaintiff's case rests on only a tiny quantity of evidence about his use and intended use of the business name. The plaintiff only says that in July 1998, he commenced operating the pharmacy business which sells ‘both ethical goods and non-schedule consumer goods’, and that he has obtained a non-exclusive licence to use the name, the exact terms of the licence being confidential. Given the limited nature of the evidence, it seems to me inappropriate to make declaratory orders in the sweeping terms of paragraphs 1 and 2. It would be consistent with the evidence that some aspect of ‘trading’ under the plaintiff's business name could involve the use of the word ‘plus’ in its secondary sense, implying superiority and thus raising the potential application of the Regulation. Obviously advertising could readily do so.

56   However, it is plain from the evidence that the plaintiff has used the name ‘Pharmacy Plus Tumut’ by displaying it on the awning of his premises and by using it on adhesive labels. In my view the actual use of the business name by the plaintiff in those ways employs the word ‘plus’ in its primary sense. I therefore intend to make the declarations in paragraphs 2A and 2B.

57 The defendant says that declaratory orders are of no practical utility because the plaintiff has successfully registered the name ‘Pharmacy Plus Tumut’ under the Business Names Act 1962 (NSW), and has obtained registration of his ownership and approval of the premises under s 24A of the Pharmacy Act. Implied in this submission is the proposition that the plaintiff will gain nothing by obtaining the orders sought. But the plaintiff stands to gain by establishing that his current use of the business name (as disclosed by the evidence) is not in contravention of reg 16 (2) (d), and therefore that his current use of it provides no basis for prosecution or review of his registration status under the Act.

58   I turn to the orders in the nature of mandamus sought in paragraphs 3 to 5, which are in the following terms:
‘3. an order in the nature of mandamus that the Defendant keep in the Register of Pharmacies all particulars of the Plaintiff that it is required to keep pursuant to s24A(6) of the Pharmacy Act 1964 (NSW);
4. an order in the nature of mandamus that, if the business name of the Plaintiff’s pharmacy is a particular that the Defendant is required to keep pursuant to s24A(6) of the Pharmacy Act 1964 (NSW), then the Defendant amend the particulars it keeps in the Register of Pharmacies to record the fact that the business name of the Plaintiff’s pharmacy is “Pharmacy Plus Tumut”;
5. an order in the nature of mandamus that the Defendant delete from the Register of Pharmacies all particulars of the Plaintiff’s pharmacy that it currently keeps in the Register of Pharmacies which it is not required to keep pursuant to s24A(6) of the Pharmacy Act 1964 (NSW).’

59 If the plaintiff had identified a statutory duty of the Board that it had failed to perform by taking an erroneous view of the meaning and connotation of the name ‘Pharmacy Plus Tumut’, it would have been appropriate to make an order in the nature of mandamus under ss 65 or 69 of the Supreme Court Act 1970 (NSW) to compel the Board to perform its duty . But the orders sought in paragraphs three, four and five do not identify any such situation. The order sought in paragraph 3 is inappropriate because information about a business name does not fall within the particulars required to be kept under s 24A (6). The order sought in paragraph 4 is contrary to my finding on that point. The order sought in paragraph 5 is contrary to my finding that it is open to the Board to record information about business names in the Register in the exercise of its general responsibilities under the Act.

60 Nevertheless, in my view a specific order in the nature of mandamus is justified having the effect of requiring the defendant to exercise its discretions under the Act with respect to the recording of information in the Register of Pharmacies consistently with these reasons for judgment. Subject to any submissions that may be made by the parties, I am inclined to order the defendant to consider the plaintiff's application to record the business name ‘Pharmacy Plus Tumut’ on the basis that the plaintiff's current use of the name as referred to in orders 2A and 2B does not contravene reg 16 (2) (d).

61   I shall direct the plaintiff to bring in draft short minutes of orders, and stand the matter over for submissions on the form of the orders and the question of costs.
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Last Modified: 10/30/2000