Nyoni v Registrar, Pharmaceutical Council of Western Australia

[2011] WASC 233

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

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

CORAM:   MASTER SANDERSON

HEARD:   24 AUGUST 2011

DELIVERED          :   7 SEPTEMBER 2011

FILE NO/S:   CIV 2330 of 2010

BETWEEN:   EMSON NYONI

Plaintiff

AND

REGISTRAR, PHARMACEUTICAL COUNCIL OF WESTERN AUSTRALIA
Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim and action - Turns on own facts

Legislation:

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), s 926
Pharmacy Act 1964 (WA), s 8(1), s 15(1), s 17, s 18, s 19, s 31A, s 31C
Pharmacy Act 2010 (WA), s 4(2)
Rules of the Supreme Court 1971 (WA), O 2

Result:

Action struck out

Category:    B

Representation:

Counsel:

Plaintiff:     In person

Defendant:     Mr M Orlov

Solicitors:

Plaintiff:     In person

Defendant:     J D Finlay & Co

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

Nil

1. MASTER SANDERSON:  This is the defendant's application to strike out the originating summons and refuse the plaintiff leave to file a proposed statement of claim.  It is the defendant's position there is nothing in the material which has been filed by the plaintiff to date which would justify allowing the plaintiff to file a further minute of statement of claim.  The defendant simply wants the action brought to an end.  Before detailing the defendant's complaints I should say something of the nature of the plaintiff's claim. 

2. Identifying just what the plaintiff's complaints are is not an easy matter.  But working from what should be regarded as a minute of proposed statement of claim prepared by the plaintiff, certain facts emerge.  The plaintiff is a pharmacist and operates a business in Kellerberrin.  He is licensed by statute to practise as a pharmacist.  For some time he worked for the Kellerberrin Hospital.  How that fact feeds into the plaintiff's present complaints is unclear.

3. At some time in 2010, the statutory authority responsible for licensing pharmacists appointed a Mr Bronswijk to undertake an inquiry into the plaintiff's conduct.  It would appear the way this inquiry was conducted forms the basis of the plaintiff's complaints.  Reading the proposed statement of claim, it is difficult to know what the plaintiff says Mr Bronswijk did wrong.  Clearly, the plaintiff thinks his rights were infringed and he has suffered loss and damage as a consequence.  No attempt is made to quantify what that loss and damage might be. 

4. The defendant says there are four grounds upon which the originating summons ought be struck out.  First, it is said the plaintiff has sued the wrong defendant.  At the time of the events forming the basis of the plaintiff's complaints, the registration of pharmaceutical chemists and pharmacies was governed by the Pharmacy Act 1964 (WA) (the 1964 Act). The Pharmaceutical Council of Western Australia (the Council) was a body corporate established pursuant to s 8(1) of the 1964 Act. The registrar was a person appointed by the Council under s 15(1) of the 1964 Act.

5. The 1964 Act was repealed and replaced by the Pharmacy Act 2010 (WA) (the 2010 Act) which commenced on 26 August 2010. The Council was replaced by a new body called the Pharmacy Registration Board of Western Australia (the Board). This Board was established under s 4(2) of the 2010 Act. Pursuant to s 79 of the 2010 Act, the new Board is a continuation of the Council in relation to functions, powers or liabilities that, immediately before the commencement day, related to the regulation by the Council of a pharmacy business or pharmacy premises.

6. Accordingly, any proceedings by the plaintiff against the Council must be brought in the name of the new Board. 

7. 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.

8. Second, the defendant alleges the plaintiff's causes of action are not maintainable on the basis of the facts and matters pleaded in the proposed statement of claim.  As I have indicated, it is very difficult to know just what is being pleaded.  The mishmash of facts, evidence and commentary makes no logical sense.  Putting the best possible construction on the proposed statement of claim, it seems to me what is being put is as follows. 

9. In par 2.17 of the proposed statement of claim, Mr Bronswijk is said to be a person 'who has been coming to the pharmacy of the plaintiff since the last twelve months in the color and power of being a pharmacy inspector appointed by the defendant'.  In par 2.19 of the proposed statement of claim, the plaintiff describes Mr Bronswijk as a 'delegated officer of the defendant [who] committed innumerous [sic] breaches of his powers and misused his authority to the greatest of extents possible, in order to harass and mentally torture the plaintiff'.

10. The proposed statement of claim appears to assume the Council can be held liable for the conduct of Mr Bronswijk.  That notion is misconceived.  The defendant admits that Mr Bronswijk was an investigator appointed by the Council under the 1964 Act to investigate complaints by members of the local community about the plaintiff's pharmacy at Kellerberrin.  The fact that complaints were made is acknowledged in par 2.10 of the proposed statement of claim, although it is alleged the complaints were 'false and frivolous'.

11. Originally, the Council was empowered to conduct its own investigations by s 17 and s 18 of the 1964 Act before taking disciplinary action against a pharmacist. These sections were repealed by s 926 of div 101 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA). They were replaced by s 31A ‑ s 31I. As a result of the 2004 amendments, the power to conduct investigations was removed from the Council and placed in the hands of persons appointed by the Council under s 31A of the 1964 Act. A person so appointed was to investigate matters relevant to the performance of the Council's functions under the 1964 Act and to report to the Council.

12. Pursuant to s 31B of the 1964 Act, an investigator appointed under s 31A is required to report on the investigation and make recommendations to the Council as to the manner in which the matter should be dealt with within such period as the Council requires. Pursuant to s 31C of the 1964 Act, an investigator appointed under s 31A is invested with certain coercive powers, including the power to enter and inspect premises, to require a person to produce and allow the inspector to inspect any document or thing concerning the investigation, and to require a person to provide information and answer questions in relation to the subject of the investigation.

13. Pursuant to s 31D of the 1964 Act, if the Council determines in a particular case that an investigator has reasonable grounds for believing that entry to premises is necessary for the purposes of an investigation, the investigator may apply to a magistrate for a warrant to be issued in respect of the premises.  Section 31E ‑ s 31I of the 1964 Act provide for various other matters relevant to the discharge of the investigators functions and duties.  These include making it an offence for any person to prevent or attempt to prevent an investigator from entering premises or otherwise obstructing or impeding him in the exercise of his powers. 

14. Pursuant to s 19 of the 1964 Act, the Council, the registrar and any other officer of the Council were exempted from liability in respect of anything done or omitted to be done in good faith in the administration or intended administration of the Act, or in the exercise or performance or intended exercise or performance of any of its or his powers, functions and duties under the Act. It is clear the appointment of Mr Bronswijk to investigate matters concerning the performance of the Council's functions under the 1964 Act in relation to the Kellerberrin pharmacy involved an exercise by the Council of its power under s 31A. Accordingly, the Council is exempted from liability in respect of such exercise of power by s 19 of the 1964 Act unless the exercise of power is shown to be in bad faith. No facts have been pleaded which could support such an allegation.

15. The plaintiff does not allege that Mr Bronswijk made any recommendations to the Council or that the Council acted on any such recommendations. Nor has the plaintiff alleged the Council has taken any action against him - whether by disciplinary proceedings or otherwise. Even if the Council had done so, it would have been exempted from liability in respect of such action by s 19 of the 1964 Act unless the Council was shown to be acting in bad faith.

16. The basis of the plaintiff's complaint appears to be an allegation that Mr Bronswijk deliberately exceeded his powers under s 31C of the 1964 Act in order to cause the plaintiff harm. Even if that allegation was true - and the defendant strenuously denies that it is true - it does not follow the Council could be held liable for the consequence of Mr Bronswijk's actions.

17. An investigator conducting an investigation pursuant to an appointment under s 31A of the 1964 Act is performing a statutory function and for that purpose is given certain powers under s 31C of the 1964 Act. An investigator conducting an investigation pursuant to an appointment under s 31A is not acting as the agent of the Council. It is a basic principle of agency law that a principal may do anything that the principal's agent may do within the scope of the agent's authority. In this case, the investigator is empowered by statute to do something which the Council itself is not empowered to do.

18. Put simply, the Council cannot be liable for any misconduct on the part of its investigator.  Therefore, the plaintiff's claim cannot succeed. 

19. Third, the defendant complains the statement of claim fails to fulfil the basic function of a pleading.  Clearly, that is the case.  Annexed to the plaintiff's chamber summons is a detailed analysis of the failings of the proposed minute.  I need not detail these complaints.  As I have indicated above, the proposed statement of claim is incomprehensible. 

20. This third complaint feeds into the defendant's fourth complaint.  It is said that the proposed statement of claim will result in serious prejudice to the defendant.  In particular, the defendant complains the proposed statement of claim alleges against various persons what amounts to criminal conduct.  No basis is provided for such pleas.  They should not be permitted to stand in a statement of claim.

21. In summary then, the defendant has made out its position.  The statement of claim is clearly unacceptable and could not in any circumstances be permitted to stand as the statement of claim.  The real question is whether leave to re‑plead ought be given.  In my view, the plaintiff simply has no cause of action and granting leave to re‑plead will be pointless.  This matter ought be brought to an end now to the benefit of all concerned.

22. The orders will be that the plaintiff's action be struck out.  The plaintiff should pay the costs of the action, including reserved costs and the costs of this application.