Nyoni v Registrar Pharmaceutical Council of Western Australia

[2012] WASCA 225

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   NYONI -v- REGISTRAR PHARMACEUTICAL COUNCIL OF WESTERN AUSTRALIA [2012] WASCA 225

CORAM:   PULLIN JA

BUSS JA
MURPHY JA

HEARD:   ON THE PAPERS

DELIVERED          :   7 NOVEMBER 2012

FILE NO/S:   CACV 116 of 2011

BETWEEN:   EMSON NYONI

Appellant

AND

REGISTRAR PHARMACEUTICAL COUNCIL OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

Citation  :NYONI -v- REGISTRAR, PHARMACEUTICAL COUNCIL OF WESTERN AUSTRALIA [2011] WASC 233

File No  :CIV 2330 of 2010

Catchwords:

Practice and procedure - Statement of claim and action struck out - No new point of principle - Turns on own facts

Legislation:

Pharmacy Act 1964 (WA)
Pharmacy Act 2010 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)

Result:

Leave to file a respondent's notice of contention granted
Respondent's notice of contention upheld
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     No appearance

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     J D Finlay & Co

Case(s) referred to in judgment(s):

Nil

1. PULLIN JA:  This is an appeal against an order of Master Sanderson which summarily struck out the plaintiff's action and ordered the plaintiff to pay the defendant's costs. 

2. The appellant commenced proceedings in unorthodox fashion by issuing an originating summons against the respondent. Also in unorthodox fashion, the appellant set out some narrative in the originating summons and annexed to it some documents. The content of the originating summons and the documents reveal that the appellant was at material times a pharmacist, running a pharmacy business at Kellerberrin. The documents reveal that the Pharmaceutical Council of Western Australia (Council) passed a resolution on 6 July 2010, appointing Mr Timothy van Bronswijk as an investigator to investigate matters concerning a complaint that the proprietor of the Kellerberrin Pharmacy breached s 38(1)(a) of the Pharmacy Act 1964 (WA) on 21 June 2010, by carrying on the practice of a pharmaceutical chemist without the supervision of a pharmaceutical chemist. One of the documents annexed to the originating summons was a certificate of appointment of Mr van Bronswijk dated 16 July 2010, signed by the President of the Council. Another document annexed dated 23 July 2010 was a notice to the appellant to produce documents and give information. It was signed by Mr van Bronswijk as investigator. The notice required the appellant to produce and permit the investigator to inspect the computer system at the pharmacy and to permit the investigator to copy the contents of the computer including making a hard copy of any electronic records on the computer system, to give information to the investigator and answer any questions put by the inspector and to produce certain documents. This notice was given pursuant to s 31C of the Pharmacy Act 1964.  Also annexed to the originating summons was a letter from Mr van Bronswijk as investigator, dated 6 August 2010, directed to the appellant and stating his intention to visit the pharmacy during the week commencing 9 August 2010 to examine the computers and computerised records. 

3. According to the narrative in the originating summons, Mr van Bronswijk visited the appellant's pharmacy at Kellerberrin on several occasions.

4. The respondent, the Registrar of the Council, was mentioned in the originating summons only in relation to two emails. The first was an email sent by the appellant to the Registrar on 17 August 2010, requesting that the Council provide the appellant with reasons and grounds for investigating him and 'exactly what I am required to produce and to who and when'. The second was an email from the Registrar, attaching a copy of the certificate of appointment of the investigator (referred to above), referring to the notice to produce documents and give information and reminding the appellant that it was an offence under s 31I of the Pharmacy Act 1964 to prevent or attempt to prevent an investigator from entering premises or otherwise obstruct or impede an investigator in the exercise of his powers under s 31C.

5. The appellant filed a statement of claim on 29 April 2011.  The statement of claim ranges over difficulties which arose between the pharmacy and the Kellerberrin Hospital and ultimately settles into a complaint about the conduct of Mr van Bronswijk during his inspections.  The statement of claim implies that the Council was responsible for any such conduct by Mr van Bronswijk and concludes in par 30 by stating:

   The plaintiff was harassed, mentally tortured and was made to undergo the pain and agony of malicious prosecution, defamation, where breaches of confidentiality were committed against him, substantive loss of earnings occurred, breach of privacy were committed with impunity, misfeasance, defamation, bullying & mistreatment, breach of contract, repudiation, negligence, severe breaches of statutory duties, deceit, loss of current and future earnings and unwarranted discrimination, whereby resulting in his reputation to be massively damaged and denigrated, taking into account the above, the plaintiff claims a total sum of $10,000,000.

6. Nothing in the statement of claim alleges any material facts supporting a cause of action against the Registrar.

7. The respondent applied to strike out the originating summons and the statement of claim.  The master struck out the action and ordered the appellant to pay costs.

The master's reasons

1. On 30 June 2011, the respondent filed a chamber summons to strike out the originating summons and the statement of claim.  The respondent's solicitor, Mr J D Findlay, swore an affidavit on 30 June 2011, revealing that the appellant was encouraged to seek independent legal advice at an early stage, that the appellant availed himself of the opportunity to do so and was briefly legally represented, but that ultimately he elected to represent himself.

2. The reasons for decision of the master seem to assume that the complaints were made against the Council and not against the Registrar.  The master noted that the Pharmacy Act 1964 had been repealed and replaced by the Pharmacy Act 2010 (WA), that the Council was replaced by a new body called the Pharmacy Registration Board of Western Australia under the latter Act and that the new Board was a continuation of the Council. The master considered that any proceedings by the plaintiff against the Council should be brought in the name of the new Board and said:

   While it seems clear the plaintiff has sued the wrong defendant, the difficulty can be cured under O 2 of the Rules of the Supreme Court 1971 (WA). This misdescription error is not sufficient to warrant the proceedings being struck out.

3. Later, the master said:

   The proposed statement of claim appears to assume the Council can be held liable for the conduct of Mr Bronswijk. 

4. The master then recited various statutory provisions, indicating that the Council under the 1964 Act had powers to conduct investigations and that Mr van Bronswijk was not an agent of the Council when conducting his investigations.  He then stated that the plaintiff's claim could not therefore succeed because the Council could not be liable for any misconduct on the part of its investigator.

5. All of this reasoning appears to be, with respect, irrelevant.  The short point is that no material facts are pleaded that would support any cause of action against the Registrar.  It is the Registrar who the appellant sued.

6. The master was however correct in concluding that the plaintiff had 'no cause of action' and that granting leave to replead would be pointless.  This was correct, because the Registrar of the Council was not in any respect responsible for any conduct by Mr van Bronswijk.

The appellant appeals 

1. The appellant has produced 21 grounds of appeal, many of which do not allege error.  However, the general tenor of some of them implies that the master erred in concluding that there was no cause of action revealed in the statement of claim.

2. One of the grounds alleges that the master was biased, alleging that 'the master quot[ed] word‑for‑word the respondent's assertions about the allegation of suing the wrong defendant'.  This merely recorded the respondent's submission.  That did not reveal bias.  That ground must be dismissed.

The respondents' notice of contention

1. Before the application to strike out was heard by the master, the respondents' solicitors wrote to the appellant by letter dated 17 September 2010 contending the proceedings were misconceived and contending that there was a 'procedural irregularity' in having commenced proceedings against the Registrar. The master's reasons do not state that the action should be dismissed because no material facts were pleaded supporting a cause of action against the Registrar. The court inquired whether the respondent proposed applying for leave to file a respondent's notice of contention pursuant to r 33(7) of the Supreme Court (Court of Appeal) Rules 2005 (WA). The respondent made such an application. The appellant advanced nothing to indicate that any prejudice would be suffered if leave were granted. As a result, leave should be granted. The notice of contention contains the contention that the master's decision can be supported on the grounds that no material facts are pleaded to support any cause of action against the Registrar. The appellant filed written submissions which did not address this point. That notice of contention should be upheld. There were no material facts supporting a cause of action against the respondent. In consequence it is not necessary to consider the appellant's grounds of appeal. The master did not err in striking out the action and the appeal should be dismissed.

2. BUSS JA:  I agree with the orders proposed by Pullin JA.  I agree generally with his Honour's reasons.

3. MURPHY JA:  I agree with Pullin JA.