Nyoni v Shire of Kellerberrin (No 6) - [2015] FCA 1294

FEDERAL COURT OF AUSTRALIA
Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294

Citation: Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294

Parties: EMSON NYONI v SHIRE OF KELLERBERRIN, DARREN FRIEND, STAN MCDONNELL, FRANK PECZKA and PETER MITCHELL

File number(s): WAD 316 of 2010

Judge(s): SIOPIS J

Date of judgment: 23 November 2015

Catchwords:
CONSUMER LAW – the Shire published minutes of a Council meeting on its website which referred to shortcomings in the provision of services by the local pharmacy – whether the conduct of the Shire is conduct “in trade or commerce” – whether the minutes made the representations about the shortcomings of the pharmacy alleged by the applicant.

TORTS – trespass – whether an electrical contractor engaged in trespass when he entered the pharmacy premises to disconnect the electricity to the pharmacy – where the electrical contractor had advised a Shire officer in advance of his intention to disconnect the pharmacy’s electricity – whether the Shire officer is liable as a joint tortfeasor.

TORTS – misfeasance in public office – where a Shire officer passes on misleading information to regulatory authorities – whether in passing on information the Shire officer was exercising a power or authority such as to attract potential liability for the tort.

Legislation:
National Health Act 1953 (Cth) s 90(1)
Trade Practices Act 1975 (Cth) ss 6(3), 52
Poisons Act 1964 (WA) Schs 8, 9, ss 24, 24(3), 28, 52A, 54
Pharmacy Act 1964 (WA) ss 23, 26, 31A, 31D, 31E(1), 31E(2), 32(1)(c), 32(2), 32(3), 32(4)
Fair Trading Act 1987 (WA) s 10
Local Government Act 1995 (WA) s 5.22
Poisons Regulations 1965 (WA) reg 44, 45, 56, 56E, 56F
Local Government (Administration) Regulations 1996 (WA) reg 13

Federal Court Rules 2011 O 80

Cases cited: Nyoni v Murphy [2013] WASC 298
Barker v The Queen (1983) 153 CLR 338
Cinnamond v British Airports Authority [1980] 1 WLR 582
Fish & Fish Ltd v Sea Shepherd UK [2015] AC 1229
Plenty v Dillon (1991) 171 CLR 635
New South Wales v Ibbett (2006) 229 CLR 638
Plenty v Dillon (1997) 194 LSJS 106
TCN Channel 9 v Anning (2002) 54 NSWLR 333
Leerdam v Noori (2009) 255 ALR 553
Calveley v Chief Constable of the Merseyside Police [1989] AC 1228
Emanuele v Hedley (1998) 179 FCR 290
Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594

Date of hearing: 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 28 and 29 July 2014

Date of last submissions: 6 August 2014

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 477

Counsel for the Applicant: The Applicant appeared in person.

Counsel for the First Respondent: Mr P McGowan

Solicitor for the First Respondent: DLA Piper Australia

Counsel for the Second, Third and Fourth Respondents: Mr P Jarman and Mr P Graham

Solicitor for the Second, Third and Fourth Respondents: Jarman McKenna

Counsel for the Fifth Respondent: The Fifth Respondent appeared in person.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 316 of 2010

BETWEEN:
EMSON NYONI
Applicant

AND:
SHIRE OF KELLERBERRIN
First Respondent

DARREN FRIEND
Second Respondent

STAN MCDONNELL
Third Respondent

FRANK PECZKA
Fourth Respondent

PETER MITCHELL
Fifth Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

23 NOVEMBER 2015

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The fifth respondent is to pay the applicant the sum of $12,000 by way of damages for trespass.
2.The applicant’s application filed on 28 October 2010 against each of the first to fourth respondents is dismissed.
3.The applicant is to pay the first respondent’s costs and the costs of the second to fourth respondents.
4.The fifth respondent is to pay the applicant’s costs in relation to the applicant’s claim against the fifth respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 316 of 2010

BETWEEN:
EMSON NYONI
Applicant

AND:
SHIRE OF KELLERBERRIN
First Respondent

DARREN FRIEND
Second Respondent

STAN MCDONNELL
Third Respondent

FRANK PECZKA
Fourth Respondent

PETER MITCHELL
Fifth Respondent

JUDGE:

SIOPIS J

DATE:

23 NOVEMBER 2015

PLACE:

PERTH

REASONS FOR JUDGMENT

In 2003, after having practised for some time as a pharmacist in Victoria, the applicant, Mr Emson Nyoni, who had immigrated to Australia from Zimbabwe, purchased the Kellerberrin pharmacy from its previous owner, Mr Geoffrey Lewis. Kellerberrin is a small town in the Wheatbelt in Western Australia. Mr Nyoni owned and operated the Kellerberrin pharmacy business during the period 2003 to 2013, before he sold the business.
The local authority for Kellerberrin is, and was at all material times, the Shire of Kellerberrin (the Shire).
During the period 2003 to 2010, there were three independent bodies that were concerned in different ways with the practice of a pharmacist in Western Australia. These were the Department of Health of Western Australia (the Health Department), the Pharmaceutical Council of Western Australia and the Australian Community Pharmacy Authority. Each was a separate body with a separate jurisdiction.
The Health Department administered the Poisons Act 1964 (WA) and a pharmacist was required to hold a licence issued under that Act to store and handle substances listed in Sch 8 of the Poisons Act. The Pharmaceutical Council was established under the Pharmacy Act 1964 (WA) and was responsible for the registration and licensing of a person to practice as a pharmacist in Western Australia. The Pharmaceutical Council regulated the professional practice standards of pharmacists in Western Australia.
The Australian Community Pharmacy Authority (the ACPA) is, and was at the material times, a Federal body, established under the National Health Act 1953 (Cth) which considered applications from pharmacists for an approval number to permit a pharmacist to supply pharmaceutical benefits at a specific location under the Pharmaceutical Benefits Scheme (PBS). The PBS approval number is issued by the Secretary of the Department of Health and Ageing under s 90(1) of the National Health Act provided that the ACPA recommends the grant of such approval number.
In 2007, Mr Nyoni held each of the licences and registrations under the Poisons Act and Pharmacy Act respectively, and was approved to supply pharmaceutical benefits under the PBS from the Kellerberrin pharmacy.
In 2007, complaints were made about Mr Nyoni’s practise as a pharmacist to the Health Department by Ms Coral Harkins, who held the position of Nurse/Director – Wheatbelt, at the instigation of Ms Theresa Beech, who was the director of nursing at the Kellerberrin hospital. These complaints were passed on to the Pharmaceutical Council.
During 2007 to 2010, inspections of the Kellerberrin pharmacy were carried out by both the Health Department and the Pharmaceutical Council, but neither of these bodies brought disciplinary proceedings against Mr Nyoni as a consequence of the inspections.
Also, during the period 2007 to 2010, there were from time to time complaints made by members of the public to employees of the Shire about Mr Nyoni’s professional practice standards, and the state of cleanliness of the Kellerberrin pharmacy.
In late 2009, Mr Nyoni sold his PBS approval number which allowed him to dispense pharmaceutical benefits under the PBS from his pharmacy in Kellerberrin. Mr Nyoni then applied for a replacement PBS approval number for the Kellerberrin location. Another pharmacist, Ms Lesley Ashburn, who was from a neighbouring town, was also a candidate for the Kellerberrin location PBS approval number.
The Council of the Shire supported the candidature of Ms Ashburn and campaigned against the issue of the PBS approval number to Mr Nyoni. The Shire invoked the support of some State and Federal politicians to the same end. The minutes of the meeting of the Shire Council of 16 February 2010 at which the Council decided to provide assistance to Ms Ashburn in her candidature, were published on the Shire’s website. The minutes contained statements which Mr Nyoni contended disparaged his pharmacy business and contained misleading or deceptive information.
On about 17 March 2010, Mr Nyoni was advised that his application for the PBS approval number was successful.
On the same day, Mr Darren Friend, the Chief Executive Officer of the Shire, hand delivered a letter to Mr Nyoni signed by Mr Stan McDonnell, the President of the Shire Council, inviting him to attend a meeting with the Shire to discuss the operations of his pharmacy. Mr Nyoni did not attend.
On 31 March 2010, the Shire offered in writing to purchase for the sum of $250,000 Mr Nyoni’s pharmacy premises and his residence. Mr Nyoni did not accept the offer.
Thereafter, officers of the Shire engaged in a number of activities inimical to the business interests of Mr Nyoni.
On 28 October 2010, Mr Nyoni commenced this proceeding against the Shire, Mr Friend, Mr McDonnell and Mr Frank Peczka. Mr Peczka was Mr Friend’s predecessor as Chief Executive Officer of the Shire. Mr Nyoni subsequently joined Mr Peter Mitchell, an electrical contractor as the fifth respondent.
In January 2013, well after this proceeding was commenced, Mr Nyoni was convicted of offences under the Poisons Act and, in May 2013, his licence to store and handle Sch 8 substances was revoked. In January 2013, Mr Nyoni entered into a contract for the sale of the Kellerberrin pharmacy business.
In this proceeding, Mr Nyoni claims loss and damage.
THE PROCEEDING
Mr Nyoni included in his original affidavit and pleadings a number of allegations which were scandalous and causes of action which were untenable. Mr Nyoni was provided with pro bono legal assistance under O 80 of the Federal Court Rules 2011. However, Mr Nyoni dispensed with the services of pro bono counsel and, thereafter, acted in person. After having struck out his pleadings, I made directions that the trial of Mr Nyoni’s originating application be confined to a limited number of causes of action and issues arising from the range of causes of action and issues referred to by Mr Nyoni in his pleadings and his affidavits. There were five causes of action relied upon at trial. These were:
(a)a claim that Mr Peczka and the Shire acted in concert with Mr Robert Bateman, a senior investigating officer of the Health Department, in trespassing upon Mr Nyoni’s pharmacy property in October 2007;
(b)a claim that the Shire, by one or more of its agents or officers, had made disparaging statements about Mr Nyoni’s business and, thereby, engaged in misleading or deceptive conduct and/or malicious falsehood;
(c)a claim that the Shire and two of its officers were liable as joint tortfeasors with Mr Peter Mitchell in trespassing upon Mr Nyoni’s property in the course of disconnecting the electricity supply to Mr Nyoni’s pharmacy in March 2010 and in October 2010;
(d)a claim that the conduct of two of the Shire’s officers in relation to the disconnection of the electricity supply to Mr Nyoni’s pharmacy, amounted to misfeasance in public office; and
(e)a claim that the Shire engaged in misleading or deceptive conduct by publishing the minutes of a Shire Council meeting which disparaged Mr Nyoni’s pharmacy business.
STATUTORY FRAMEWORK
It is necessary first to say something in relation to the statutory framework for the regulation of pharmacists in Western Australia relevant to this case.
The Poisons Act provided that a person is required to have a licence issued under the Poisons Act in order to store and handle substances referred to in the Poisons Act as “poisons”, including, relevantly for this case, substances specified in Sch 8 to the Poisons Act. The Poisons Act states that the chief executive officer, referred to as the “CEO”, is responsible for the administration of the Poisons Act.
Section 24 of the Poisons Act provided that the CEO (as defined by s 3 of the Health Legislation Administration Act 1984 (WA)) may grant a licence to a person to sell by retail any poison in premises or at a place of business specified in the licence to any person who satisfies the CEO that he or she is a fit and proper person to be the holder of such a licence.
Section 24(3) of the Poisons Act provided that the CEO shall not grant the licence unless he or she is satisfied that the premises of the applicant are suitable for the purpose in respect of which the licence application is made and are properly and hygienically equipped for that purpose.
Regulation 44 of the Poisons Regulations 1965 (WA) required that a licenced pharmacist maintain a register of drugs of addiction (being any substance included in Sch 8 or Sch 9 of the Poisons Act) and that the licenced pharmacist record any transaction relating to a drug of addiction in the register. Regulation 45 required that the drugs of addiction register and other prescribed documents relating to drugs of addiction to be kept for seven years. Regulations 56, 56E and 56F prescribed that the drugs of addiction be securely stored by the pharmacist in a safe, lockable drawer, or poisons cupboard, and that the key was to be kept “in his or her immediate and personal possession”.
Section 28 of the Poisons Act provided that the CEO may in his or her discretion cancel, suspend or revoke at any time any licence or permit issued pursuant to the Poisons Act.
Section 52A of the Poisons Act provided that the Minister may declare a person to be an authorised officer for the purposes of the Poisons Act.
Section 54 of the Poisons Act provided that:
(1)An authorised officer may, for the purpose of ascertaining whether this Act is being complied with, at any reasonable time –
(a)enter upon –
(i)any premises occupied by any person licensed or otherwise authorised under this Act to have possession of any poison or prohibited plant; or
(ii)any place on or from which poisons are sold;
(b)inspect or examine any room or part of the premises or place entered upon, and any goods or records in or on the premises or place;
(c)take an account of any poisons and or any prohibited plants in or on the premises or place;
(d)on payment or tender of a reasonable price, demand, take and obtain a sample of any poison or prohibited plant in or on the premises or place.
At the time relevant to this proceeding, the Pharmacy Act regulated the registration of pharmacists and the professional practice standards of pharmacists in Western Australia. The Pharmaceutical Council was a body which was established under the Pharmacy Act and administered the Pharmacy Act.
The Pharmacy Act provided that a pharmacist must be registered as a pharmacist and licenced under the Pharmacy Act in order to carry on business as such (s 26). Further, the Pharmacy Act provided that premises to be used as pharmacies must also be registered under the Pharmacy Act (s 23).
The Pharmacy Act by s 32(1)(c) relevantly provided that there was a proper cause for disciplinary action being taken against a pharmacist, if the pharmacist was guilty of “carelessness, incompetence, impropriety, misconduct or infamous conduct in a professional respect”.
Section 32(2) of the Pharmacy Act provided that the Pharmaceutical Council may allege to the State Administrative Tribunal (SAT) that there is “proper cause for disciplinary action” against a pharmacist.
Section 32(3) provided that if SAT was of the opinion that a proper cause existed for disciplinary action, SAT may deregister the pharmacist, suspend the pharmacist from practice for a period not exceeding three years, impose a fine not exceeding $500 or censure him or her.
Section 32(4) provided that if the nature of the matter did not warrant the making of an allegation to SAT, the Pharmaceutical Council could deal with the matter itself; in which case, it could impose a fine not exceeding $500 or censure the pharmacist.
The Pharmacy Act also empowered the Pharmaceutical Council to appoint a person to investigate a matter relevant to the performance of the Council’s function under the Pharmacy Act and to report to the Council (s 31A).
Section 31D provided that if the Pharmaceutical Council had determined in a particular case that an investigator had reasonable grounds for believing that entry to the premises was 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(1) provided for the issue by the magistrate of a warrant on the application of the investigator.
Section 31E(2) provided as follows:
A warrant under subsection (1) authorises the investigator –
(a)to enter and inspect the premises named in the warrant;
(b)to require a person on the premises to answer questions or produce documents or other things in the person’s possession concerning the investigation; and
(c)to inspect documents and other things, and take copies of or extracts from documents, produced in compliance with a requirement made under paragraph (b).
At all relevant times, Mr Timothy van Bronswijk was employed by the Pharmaceutical Council as a pharmacist field officer. Mr van Bronswijk reported to the registrar of the Pharmaceutical Council, Mr Robert Brennan.
BACKGROUND
In 2003, Mr Nyoni commenced operating the Kellerberrin pharmacy at 92 Massingham Street in Kellerberrin after Mr Nyoni purchased the pharmacy from Mr Geoffrey Lewis.
In 2007, Mr Frank Peczka was the Chief Executive Officer of the Shire.
On 16 January 2007, Mr Peczka sent a letter from the Shire to Mr Nyoni reporting on an inspection which had been carried out of the Kellerberrin pharmacy premises by Mr John Mitchell, a Shire environmental health officer. The letter referred to the existence of cobwebs within the display counter, empty boxes accumulated in the rear service entrance of the premises and the existence of further cobwebs adjacent to the water fridge.
On 22 January 2007, Mr Peczka wrote a letter to Mr Nyoni saying that the subsequent inspection had determined that the premises were “reasonably clean”. Mr Peczka also drew Mr Nyoni’s attention to ensuring that the windows and the glass work were maintained in a clean state and that the carpet was kept clean.
In 2007, three important customers of the pharmacy were local Kellerberrin institutions. The first was the Kellerberrin hospital, the second was the Dryandra hostel, which was a frail age care home, and the third was Iris Litis House, a care facility for people with intellectual disabilities.
Prior to 2007, each of these institutions had engaged the Kellerberrin pharmacy to supply it with the medications for its patients. The medications were to be supplied packed in a container referred to during the trial as a “Webster pack”.
A Webster pack is a plastic rectangular container containing 28 compartments comprising seven vertical rows for each day of the week and four horizontal rows, representing different times during a day when a patient was to take the prescribed medication. Accordingly, each compartment in the Webster pack represented the time and the day when the pill or medication placed in that compartment was to be taken by the patient. The process operated on the basis that prescriptions for each of the patients were delivered by each institution to the Kellerberrin pharmacy. The prescribed medication for each patient was then removed by the pharmacist from its original packaging and the medication was then placed into the appropriate compartment of a separate Webster pack for each patient. The object of using a Webster pack was to make it easy for the patient to know what medication to take and when to take it.

From about August 2005 to January 2007, Iris Litis House drew Mr Nyoni’s attention to errors in relation to the supply of medications in the Webster packs for its patients. This was done by an employee at the Iris Litis House completing a form entitled “Medication Incident Form” identifying the issue and providing the form to Mr Nyoni for him to respond. The evidence shows that there were three such incidents in 2005, 13 such incidents in 2006 and one such incident in January 2007.
In 2007, Ms Dawn Harvey, the manager of Iris Litis House, terminated the contract for the supply of pharmaceuticals by the Kellerberrin pharmacy to Iris Litis House on the basis of her dissatisfaction in relation to Mr Nyoni’s services.
By a letter dated 6 March 2007 from Ms Beech to Mr Nyoni, Ms Beech gave notice that the Kellerberrin hospital no longer required the services of the Kellerberrin pharmacy to supply Webster packs to their nursing home residents. As previously mentioned, Ms Beech was then, and at all material times, the director of nursing at the Kellerberrin hospital.
However, the Kellerberrin hospital did not terminate the contract for the supply of Webster packs for its health and care in the community patients. The hospital, however, implemented a procedure whereby the Webster packs were checked by the home and community care nurse and coordinator, Ms Bernice Del Borrello, before being distributed to the patients.
On 30 March 2007, Dryandra hostel wrote to Mr Nyoni recording that there had been seven medication errors in the week of 9 March 2007, seven in the week of 16 March 2007 and five in the week of 23 March 2007. The letter stated that unless Mr Nyoni could rectify the position the Dryandra hostel would have to change its pharmacy supplier.
From time to time during the period 2007 to 2010, members of the public also made complaints about the Kellerberrin pharmacy to Shire officers. The complaints included complaints that the pharmacy was dirty, that it did not have sufficient stock, that the operating hours were irregular and that Mrs Nyoni dispensed medicines in the absence of Mr Nyoni.
On 3 July 2007, the Health Department received a complaint that Mrs Nyoni was dispensing medicines in Mr Nyoni’s absence. Mr Ross Atkinson, a pharmacist employed by the Health Department, raised the complaint with Mr Nyoni, but took no action consequent upon Mr Nyoni’s explanation.
On 17 September 2007, Ms Beech complained to Ms Harkins that there were consistent errors being made in relation to the preparation of Webster packs by Mr Nyoni in respect of patients in the hospital and other institutions. Ms Beech also advised Ms Harkins that the local health advisory group had been made aware of the complaints and the local health advisory group had written to the Pharmaceutical Council on 28 August 2007 about the complaints.
On 18 September 2007, Ms Harkins, Ms Beech, Ms Del Borrello and the chairperson of the Kellerberrin local health advisory group met and discussed the dispensing error complaints and then consulted Mr Murray Patterson of the Health Department who held the position of Chief Pharmacist.
On or about 19 September 2007, Mr Steven Britton, a Kellerberrin resident and customer of the pharmacy, complained to the Pharmaceutical Council about a dispensing error made by Mr Nyoni. Mr Nyoni elected to have the matter dealt with by the Pharmaceutical Council, rather than SAT. On 13 February 2008, the Pharmaceutical Council imposed a fine of $300 upon Mr Nyoni.
On 19 September 2007, Mr Patterson and Dr Geoff Masters, acting director of the Health Department, had a meeting with the Pharmaceutical Council in relation to the complaints made by Ms Harkins.
On 25 September 2007, Mr Patterson, Ms Harkins and Dr Masters met in relation to the complaints.
On 27 September 2007, consequent upon that meeting, Mr Patterson sent an email to Dr Masters and Ms Harkins saying:
I have the Senior Investigating Officer from my Branch, Robert Bateman available to visit Kellerberrin next week. He is not a pharmacist but will be able to collect statements and assess the evidence. He is also an authorised officer under the Poisons Act which provides powers to enter the pharmacy and seek information if required.
I suggest that he go to Kellerberrin next Tuesday 4 October to complete the investigation and have a discussion with Mr Nyoni.
Coral
Robert will contact you today or tomorrow to discuss the information you have…
Later that day, Ms Harkins sent an email to Mr Patterson which said:
Thank you for all your support with this Murray. I have spoken with Robert and discussed his plan to visit Kellerberrin on Tuesday including the information that is required.
I have advised the DON/HSM and she will be contacting Robert today to assist him in this process.
On 27 September 2007, Ms Harkins sent an email to Ms Beech to the following effect:
Further to our telephone conversation today (27/9):
Robert Bateman (DoH Pharmacy Services) will be in Kellerberrin on Tuesday and Wednesday 4/10/07-5/10/07 (inclusive) to investigate the pharmacy services. Robert will need all information relating to complaints, or risk management to assist him in that process. Would you please phone Robert to make those arrangements and to set up appointments for yourself and Bernice to meet with him…
Robert has advised me that he will start with a review of the Pharmacy itself, and then meet with staff and the General Practitioner (GP). Robert will contact the GP directly and set up a time to meet with him. If I can do anything to assist you in this process, or you just want to confirm the process, please do not hesitate to contact me on my mobile phone.
That email was copied to Mr Bateman. The reference to “Bernice” is a reference to Ms Bernice Del Borrello. Ms Beech subsequently telephoned Ms Del Borrello to arrange for her to meet Mr Bateman when he came to Kellerberrin.
By a letter undated, but delivered on 28 September 2007, the Dryandra hostel terminated its contract with Kellerberrin pharmacy for the supply of pharmaceuticals with effect from 7 October 2007. The letter referred to its dissatisfaction with the provision of Mr Nyoni’s services.
On 2 October 2007, Mr Bateman went to Kellerberrin and stayed there until the next day. While in Kellerberrin, Mr Bateman conducted interviews with Ms Beech, Ms Del Borrello, Dr Andrew Bellagooyne, the doctor in Kellerberrin, Ms Noreen Bonser, the care manager at Dryandra hostel, and Mr Steven Britton. Mr Bateman prepared written statements in respect of each of the interviews. The statement of Mr Britton was dated 2 October 2007. The statement dealt with the dispensing error referred to earlier. The statement of Dr Bellagooyne is dated 2 October 2007. The statements of Ms Del Borrello and Ms Bonser were each dated 3 October 2007. Each of Ms Del Borrello’s and Ms Bonser’s statement dealt with complaints as to the preparation of Webster packs and records that each of them had seen Mrs Nyoni dispensing medicines when Mr Nyoni was apparently not present in the pharmacy.
Also, while in Kellerberrin, Mr Bateman entered the Kellerberrin pharmacy premises, inspected the premises and asked Mr Nyoni a number of questions. The circumstances of Mr Bateman’s entry onto the Kellerberrin pharmacy premises and the activities in which he engaged whilst on those premises, is the subject of one of the claims made by Mr Nyoni. I will address that issue in some detail later in these reasons.
On 15 October 2007, Mr Bateman returned to Kellerberrin and carried out further investigations.
On 16 October 2007, Mr Bateman prepared a written report to Mr Patterson in relation to his inspection of the Kellerberrin pharmacy. That report refers to four matters which Mr Bateman had investigated. The first issue dealt with the complaints about dispensing errors by Mr Nyoni and Mrs Nyoni dispensing medicines in Mr Nyoni’s absence from the pharmacy. The report records responses made by Mr Nyoni to queries addressed to him by Mr Bateman. The other issues dealt with in Mr Bateman’s report relate to the storage and handling and record-keeping in relation to Sch 8 substances, Mr Nyoni’s professional qualifications, and an allegedly false statement made by Mr Nyoni during Mr Bateman’s interview with Mr Nyoni.
On 6 November 2007, Mr Patterson wrote a letter to Mr Brennan, registrar of the Pharmaceutical Council:
I am writing to you as an outcome of an ongoing investigation of Mr Emson Nyoni and the Kellerberrin Pharmacy.
Following the meeting we had with Dr Geoff Masters, Coral Harkins and representatives of the Pharmaceutical Council of WA on Tuesday 18 September 2007 an investigation was commenced on Tuesday 2 October 2007. The investigation has found a number of issues of concern as follows:
ŸNumerous dispensing errors
ŸSupply of Schedule 4 medicines by a non-pharmacist
ŸFailure to comply with the Poisons Regulations in regard to the recording of Schedule 8 medicine transactions
ŸInaccuracies in the information provided by Mr Nyoni
- potentially false statutory declaration on the destruction of a Drugs of Addiction Register
- false or unsubstantiated qualifications used on pharmacy stationery.
I will be take up the issues regarding non-compliance with the Poisons Regulations directly with Mr Nyoni.
The number and serious nature of the dispensing errors found are of great concern. Errors have been brought to the attention of Mr Nyoni but he has not accepted responsibility for the errors or put appropriate systems in place to minimise the dispensing errors. I am concerned for the welfare of those patients receiving medicines dispensed by the pharmacy and have recommended that the pharmaceutical services of another provider be sourced for patients of the Western Australian Country Health Service (WACHS) subject to the resolution of the issues identified during the audit.
I am writing to the Pharmaceutical Council of WA as the regulatory body for the registration of pharmacists under the Pharmacy Act 1964 to undertake an urgent assessment of Mr Nyoni’s competence to undertake the functions of a pharmacist. As part of this process I request that the veracity of the claims made by Mr Nyoni in his application to the Australian Pharmaceutical Council for assessment of his qualification also be validated.
A copy of the interim report on the investigation to date is enclosed for your information. Please do not hesitate to contact me in regard to this issue if I can be of any further assistance.
On 12 February 2008, Mr Bateman and Mr Atkinson carried out another inspection of the Kellerberrin pharmacy. The inspectors were concerned that Mr Nyoni had not complied with the requirements of the Poisons Regulations in relation to the handling and storage of Sch 8 substances.
Consequent upon Mr Bateman’s and Mr Atkinson’s inspection, the Health Department wrote to Mr Nyoni, on 3 April 2008, asking him to show cause why his licence to handle Sch 8 substances should not be suspended.
Following the response which Mr Nyoni provided, the Health Department decided not to take any disciplinary action against Mr Nyoni. Accordingly, on 30 April 2008, Mr Patterson wrote to Mr Nyoni informing him that the number and seriousness of the breaches of the Poisons Regulations in relation to Sch 8 substances would usually have resulted in consideration of prosecution proceedings being commenced against him. However, said Mr Patterson, due to the environment where the Kellerberrin pharmacy was the only facility providing pharmaceuticals to the local community, Mr Nyoni would be permitted to continue storing and supplying Sch 8 substances under specific audit conditions. Mr Nyoni would be required to develop procedures for the recording of Sch 8 substance transactions at his pharmacy and to be the subject of regular audits of his drugs of addiction register at the Kellerberrin pharmacy by another registered pharmacist from a neighbouring town.
Thereafter, an audit process was arranged whereby Mr Matthew Reid, a pharmacist from a neighbouring town, audited Mr Nyoni’s compliance with procedures for handling Sch 8 substances.
On 5 June 2008, Dr Masters wrote to the Pharmaceutical Council and their lawyers, JD Finlay & Co, with information regarding complaints made about the Kellerberrin pharmacy including complaints about dispensing errors, opening hours and lack of adequate stock.
On 10 June 2008, the Pharmaceutical Council advised the Health Department that it had resolved to commence proceedings in SAT alleging that Mr Nyoni was guilty of professional misconduct.
On 12 June 2008, Mr van Bronswijk, who as I have said was a pharmacist field officer, employed by the Pharmaceutical Council, attended the Kellerberrin pharmacy for an inspection. During that visit, Mr van Bronswijk took photographs of the premises. Mr van Bronswijk recorded that the condition of the pharmacy was extremely poor, the external appearance was shabby and rundown, the shelves were covered with dust throughout the front of the shop and the dispensary, the carpet was dirty and stained, the dispensary bench in the area for medication packing was highly disorganised and littered, and the dispensing area and sink were very dirty.
Mr van Bronswijk also recorded that the pharmacy references were incomplete and out of date, that there was expired stock present throughout the front of the shop and the dispensary, and that the dispensary was disorganised.
On 31 July 2008 and 22 October 2008, Mr van Bronswijk visited the premises of the Kellerberrin pharmacy again.
I infer that in late 2008, the Pharmaceutical Council verbally advised an official at the Health Department that it was unable to progress its proposed disciplinary hearing against Mr Nyoni arising from the complaints about dispensing errors made by Ms Harkins and Ms Beech, because no one was prepared to give evidence against Mr Nyoni at SAT.
During January 2009, Ms Harkins continued to communicate with Dr Masters about the investigation of the complaints made about the Kellerberrin pharmacy. Ms Harkins said that there were members of the staff of the Country Health Service who were willing to testify before SAT.
On 21 February 2009, Dr Masters wrote to the Pharmaceutical Council enclosing notes about the complaints he had received regarding dispensing errors allegedly made by the Kellerberrin pharmacy.
In February 2009, Mr Friend replaced Mr Peczka as Chief Executive Officer of the Shire.
On 3 March 2009, Ms Harkins sent an email to Ms Beech stating:
I have spoken with Robert Bateman today (8.45 am 03032009) and he is travelling to Kellerberrin to continue the investigation relating to the provision of private pharmacy services.
Robert has advised that he will be
(1)visiting the hospital to review the availability of staff to participate in an investigation by the State Administrative Tribunal (SAT); and
(2)conducting an audit of the Kellerberrin Pharmacy.
Robert has also asked (SRC) that you give him any evidence that you have of tablets and scripts that have been incorrectly dispensed so that he may review those errors as part of the process.
On 3 March 2009, Mr Bateman again visited Kellerberrin. Whilst he was there he met with Ms Beech at the Kellerberrin hospital who handed him a Webster pack which Ms Beech said had been prepared by the Kellerberrin pharmacy and had contained an error. Ms Beech also gave Mr Bateman a document dated 9 February 2009 that she had prepared, which identified three “issues” in relation to Mr Nyoni’s business practices. These were:
(a)       frequent lack of commonly used prescription drugs in stock;
(b)       shop closed during normal business hours without notice; and
(c)       dirty shop.
Also, Mr Bateman was given the names of two persons who were said to be willing to give evidence against Mr Nyoni before SAT. Mr Patterson passed on the information given to Mr Bateman, to Mr Brennan by letter dated 10 March 2009.
On his visit of 3 March 2009, Mr Bateman found no infringements of the Poisons Act.
On 10 March 2009, a Ministerial memorandum was prepared and was signed by Dr Tarun Weeramanthri, the executive director, public health division, and Dr Andrew Robertson, director, disaster management, regulation and planning directorate, consequent upon a request by the Pharmaceutical Council to meet with the Minister for Health, Dr Kim Hames, in relation to the complaints that had been made about the Kellerberrin pharmacy.
The Ministerial memorandum recorded the fact that the public health division had received verbal advice from the Pharmaceutical Council that it had not been able to progress the proposed action in SAT due to inadequate evidence and the unwillingness of patients to testify. The memorandum then recorded under the heading “Current Status” that:
ŸThe Kellerberrin pharmacy has been regularly audited and currently meets the requirements of the Poisons Act 1964 and associated regulations. There are currently no grounds to withdraw Mr Nyoni’s poisons licence, although the Department will continue to closely monitor his performance and ensure that monthly audits continue for the foreseeable future.
ŸMatters relating to the opening hours of the pharmacy and the amount of stock held at the pharmacy are not controlled through either the Poisons Act 1964 or the Pharmacy Act 1964. Medicare Australia may have some interest in these aspects of practices at the Kellerberrin Pharmacy, as the pharmacy is approved to supply medicines under the PBS. We understand that the Council has brought this to their attention.
ŸThe Department will forward to the Council information obtained at the most recent audit on 3 March 2009 of an alleged dispensing error and the details of people in Kellerberrin who have indicated that they are willing to testify at the SAT. The Council is responsible for ensuring this information is acted upon and that Mr Nyoni’s professional practice is reviewed.
On 12 March 2009, JD Finlay & Co, the Pharmaceutical Council’s lawyers, wrote to Dr Masters in response to his letter of 21 February 2009, as follows:
We have been instructed to respond to the matters raised in the briefing notes attached to your letter on behalf of the Pharmaceutical Council of Western Australia. The notes are inaccurate in many respects. some of the more significant errors are dealt with below.
1. Complaints concerning opening hours of Pharmacy and stock
This matter was addressed in our letter to you dated 27 February 2009.
2. Dispensing Errors
The Pharmaceutical Council of Western Australia was provided with a report from the Department of Health which contained correspondence from Dryandra Hostel, Activ Foundation Inc and Kellerberrin Health Services. Also included with the report were statements from members of the Kellerberrin community containing allegations of dispensing errors.
In 2008 we wrote to Mr Nyoni concerning various allegations that had been made of dispensing errors throughout 2007 informing him that we had been instructed to initiate proceedings in the State Administrative Tribunal concerning alleged dispensing errors and other matters.
Mr Nyoni subsequently engaged Guild Legal Limited of Sydney and we received a request for copies of the relevant complaints from Guild Legal.
Council is obliged to provide adequate particulars of the complaints to enable Mr Nyoni to respond and defend any proceedings that may be commenced against him. Procedural fairness requires that these particulars be provided.
Due to privacy considerations, before providing copies of the written complaints to Mr Nyoni’s solicitors, we wrote to the various complainants seeking consent to provide copies of the complaints to Guild Legal. Two of the lay complainants refused to give authority to provide the information to Mr Nyoni, Dryandra Hostel and Kellerberrin Health Services did not reply and only Activ Foundation Inc consented to its complaints being made available. The Active Foundation complaints referred to matters alleged to have occurred in 2007 and was not supported by complaints from specific patients.
In a telephone conversation that the writer had with Ms Kay Lamplugh (a member of the Kellerberrin community) he was advised that the some complainants are not prepared to consent to the complaints being made available to Mr Nyoni because of the likely ramifications once the identity of the complainants is made known to him.
In these circumstances we do not consider that Council could successfully bring an application to the State Administrative Tribunal in respect to any of these allegations.
It should be noted that Council does not administer the Poisons Act or the Regulations and has no jurisdiction to prosecute alleged breaches of the act or regulations.
1.State of the Premises
A number of the complainants were concerned that the condition of the premises from which Kellerberrin Pharmacy operated was unsatisfactory. Council arranged for inspection of the premises to be carried out by its Field Officer, Mr T Van Bronswyk in June 2008. We are instructed that the initial inspection of the pharmacy premises showed that the state of cleanliness and repair was unsatisfactory.
We are instructed that the Council informed Mr Nyoni that the state of the premises was unsatisfactory and required substantial work to be carried out to bring the premises to a satisfactory state. In July and October 2008 Mr Van Bronswyk carried out further inspections of the premises. The subsequent inspections indicated that Mr Nyoni had made a significant attempt to improve the state of the premises and the state of the premises is now acceptable.
We now understand that the Council intends to carry out regular inspections of the premises to ensure that the proprietor does not allow the premises to revert back to the previous unsatisfactory state. We are instructed that Mr Van Bronswyk attempted to inspect the premises on 4 March 2009 but the premises were closed. A further inspection will be carried out shortly.
In our opinion, the action taken by the Pharmaceutical Council of Western Australia in relation to the state of the premises is sufficient.
2.Absence from Pharmacy
Various residents of Kellerberrin have alleged that Mr Nyoni is not present in the pharmacy at all times during business hours.
Council engaged a private investigator to visit the pharmacy on several occasions to ascertain whether or not the allegation that Mr Nyoni was absent from the pharmacy from time to time could be verified. A written report from the investigators provided some support for the allegation that Mr Nyoni absents himself from the pharmacy from time to time.
Council was also provided with some anecdotal evidence from a relieving pharmacist employed at the pharmacy during 2006, to the effect that dispensing medicines or drugs are not referred to Mr Nyoni to be checked as a matter of course.
In our opinion, there is insufficient evidence to justify the commencement of any disciplinary proceedings because
(a)Most of the complainants from the Kellerberrin community are not prepared to give evidence to support the allegations that they make against Mr Nyoni.
Without this evidence any allegation that the pharmacist is absent from the pharmacy premises during business hours or that he does not supervise the dispensing of medicines or drugs from the pharmacy (if he is at the premises) cannot be proved.
(b)There is no compelling evidence that leads to the conclusion that the pharmacy business is operated without Mr Nyoni being present. The lay complainants are not able to state categorically that Mr Nyoni was not on the premises at the times when it is alleged that Mr Nyoni is absent.
Whilst it is noted that WACHS is forced to expend considerable resources to check medications dispensed at Kellerberrin pharmacy, you should be aware that Council has also expended considerable time and money in dealing with the various complaints made against Mr Nyoni. In the main this expenditure has been wasted due to the continued failure of most complainants to support the allegations that they make against Mr Nyoni.
We have been instructed to repeat our client’s position on this matter, namely that specific complaints will continue to be dealt with where there is supported evidence of professional misconduct.

In October 2009, the Pharmaceutical Council imposed a fine of $300 on Mr Nyoni after he did not contest a complaint by a customer that Mr Nyoni had provided the customer with the wrong medicine.
In late 2009, Mr Nyoni sold his PBS approval number for $500,000 and then applied for a new PBS approval number for the Kellerberrin location. Mr Nyoni did not make it known that he had sold his PBS approval number and had applied for a new PBS approval number.
The Shire found out that Mr Nyoni had sold his PBS approval number and that he had applied for a new one, when Mr Friend, who was then the chief executive officer of the Shire, was advised of that fact by Mr Matthew Reid, a pharmacist who owned pharmacies in the towns of Northam and York. The fact that Mr Nyoni sold his PBS approval number meant that there was a period during which there was no pharmacy in Kellerberrin which was licenced to sell subsidised pharmaceuticals under the PBS Scheme. At around this time, Mr Friend and Mr McDonnell also learned that an application for a PBS approval number for the Kellerberrin location, had also been submitted to ACPA by Mr Matthew Reid or by an associate of his.
On 6 January 2010, Mr Friend, on behalf of the Shire, sent a letter to the Minister for Health, Dr Kim Hames, making a formal complaint about the operations of the Kellerberrin pharmacy and asking that the complaint be investigated. The letter said that the Shire had received complaints that the pharmacy was “regularly closed during normal business hours”, that there were instances when incorrect medication was given, and that Mrs Nyoni, who was not licenced to do so, regularly dispensed prescription medicines in Mr Nyoni’s absence from the pharmacy. The letter also alleged that the Kellerberrin pharmacy was short of prescription stock.
On 7 January 2010, Mr Friend wrote the following letter to Mr Matthew Reid:
I refer to our previous discussions and subsequent visit to Kellerberrin to look at the possibility of setting up a Pharmacy to service Kellerberrin and its surrounding districts.
Council has signed off on an offer and acceptance form to purchase 96 Massingham Street from the current owner Craig Yarran. An early settlement of the property has been requested to expedite the transfer.
The named applicant for the PBS approval number for the Kellerberrin location was, however, Ms Ashburn, who I infer, had a professional association with Mr Reid.
On 18 January 2010, Mr McDonnell, the Shire President, sent a letter to ACPA urging ACPA not to grant a new PBS approval number to Mr Nyoni for the Kellerberrin pharmacy. Mr McDonnell’s letter referred to the Kellerberrin pharmacy as keeping inadequate stock and having irregular opening hours, as well as being in a dirty state.
Mr McDonnell’s letter of 18 January 2010, was copied to the Federal Minister for Health and Ageing, Mr Wilson Tuckey, Federal Member for O’Connor, and Mr Barry Haase, Federal Member for Kalgoorlie.
On 1 February 2010, Dr Kim Hames responded to Mr Friend’s letter of complaint about Mr Nyoni saying that the complaints should be made to the appropriate bodies.
On 15 February 2010, Mr Barry Haase wrote a letter to the ACPA reiterating the complaints made about Mr Nyoni’s pharmacy and urging the ACPA to “ensure a robust and transparent process when granting the Kellerberrin PBS licence”.
On 16 February 2010, there was a meeting of the Shire Council.
The minutes of that meeting record that the pharmacist, who was the rival applicant to Mr Nyoni for the PBS approval number (referred to in the minutes as “the proponent”) was required as part of the application process, to have access to a suitably zoned premises in Kellerberrin from which to operate a pharmacy. The minutes also record that the Shire Council ratified the actions of Mr McDonnell and Mr Friend in purchasing a property at 96 Massingham Street, Kellerberrin, and stated that the Council was prepared to enter into an agreement to lease the premises at 96 Massingham Street to the proponent for a minimum term of 12 months, subject to the proponent being the successful applicant for the PBS approval number. The minutes went on to record that the Shire Council would, if the proponent was the successful applicant, also source a suitable private dwelling to accommodate “the pharmacist and his/her family”.
The minutes also contained statements about Mr Nyoni’s pharmacy which Mr Nyoni alleges reflected adversely upon him and his business. The minutes of the Shire Council meeting were published on the Shire’s website. The publication of those minutes is the subject of a claim brought by Mr Nyoni. I will deal in detail with that claim later in these reasons.
On 4 March 2010, the delegate of the chief executive officer on behalf of the Secretary to the Department of Health and Ageing, responded to Mr McDonnell’s letter of 18 January 2010 as follows:
Thank you for your letter of 18 January 2010 in which you raise concerns about the supply of pharmaceutical benefits at the Kellerberrin pharmacy, 92 Massingham Street, Kellerberrin WA 6410.
Please be assured that Medicare Australia is concerned to ensure that a pharmacist approved to supply PBS medicines is meeting the conditions of an approval and other requirements specified in the National Health Act 1953.
I note your comments about the opening hours of the pharmacy and the supplies of pharmaceutical items kept on hand. These types of issues are relevant considerations when deciding whether to grant an approval to a pharmacist to supply medicines subsidised under the Pharmaceutical Benefits Scheme (PBS) or whether to cancel an approval.
I will consider the information you have provided in conjunction with the legislative requirements for a pharmacy approval specified in the National Health Act 1953 in any decision I may make regarding the supply of PBS medicines at pharmacy premises in Kellerberrin.
I note your concern about the condition of the pharmacy premises. This matter is the responsibility of the Pharmacy Council of Western Australia and information about the Council can be found at I trust this information is of assistance.
On 15 March 2010, Mr Peter Mitchell, the fifth respondent, an electrical contractor, disconnected the power to the Kellerberrin pharmacy. The circumstances surrounding the disconnection of the electricity is the subject of one of the stated issues in the case and I will discuss this matter later in these reasons.
Also, on 15 March 2010, after the electricity had been disconnected to the pharmacy, Mr Garry Tucker, the environmental health officer employed by the Shire, telephoned Ms Joy Knight of the Health Department and advised that the electrical power had been disconnected and the pharmacy had been without electrical power from 8:00 am on Monday, 15 March 2010.
Ms Knight then contacted Mr Nyoni. He confirmed that the electrical power was off. Ms Knight advised him that he should not be dispensing medication as he had no ability to access customers’ records kept on his computer. Mr Nyoni advised Ms Knight that he had removed all refrigerated items from his pharmacy and placed them in his personal refrigerator at his home which was fully operational.
On 15 March 2010, Mr Tucker also contacted Mr van Bronswijk to advise him that the power had been disconnected.
Shortly before 17 March 2010, Mr Friend also learned from Mr Reid that Ms Ashburn’s application for the PBS approval number in respect of a proposed pharmacy in Kellerberrin had not been successful.
On 17 March 2010, the electrical power was restored to the Kellerberrin pharmacy.
Also, on or about 17 March 2010, Mr Nyoni was advised that a new PBS approval number had been issued to him.
On 17 March 2010, Mr Tucker entered the Kellerberrin pharmacy, on the instructions of Mr Friend, and undertook an extensive inspection of the pharmacy and its premises. I observe that Mr Tucker claimed in his evidence that he had decided to undertake this inspection on his own accord. Mr Friend said that he instructed Mr Tucker to undertake the inspection of the pharmacy premises. I prefer the evidence of Mr Friend.
Mr Tucker, without having obtained the consent of Mr Nyoni or Mrs Nyoni, who was present in the pharmacy at the time, then took a number of photographs of the pharmacy premises. These photographs showed the pharmacy to be in a dirty condition. Mr Tucker subsequently provided those photographs to the Pharmaceutical Council and the Health Department.
Further, on 17 March 2010, Mr Friend hand delivered a letter signed by Mr McDonnell to Mr Nyoni at the pharmacy. The letter stated:
I write on behalf of the Council and the Kellerberrin community concerning the operations of the Kellerberrin Pharmacy and its effect on the general business community in town.
I request that you make yourself available to meet with a delegation from Council as soon as possible to discuss this most important matter.
Please contact the Chief Executive Officer Darren Friend on…to arrange a suitable time for the meeting.
I ask that you give this matter your most urgent attention.
Mr Nyoni never responded to Mr Friend’s letter.
On 31 March 2010, Mr McDonnell wrote a letter to Mr Nyoni on behalf of the Council stating:
Council is of the belief, given the repeated complaints received in this office concerning the operations of the pharmacy, that the impact on the business community and the Kellerberrin community in general is extremely detrimental to the efforts of the Council in trying to progress the Shire of Kellerberrin forward.
Your inability to provide the goods and services that the community deserves, (ie irregular opening hours, lack of pharmaceutical items, cleanliness of the establishment, sale of your PBS licence and lack of stock) is seen as a slight on the community whose Council financially assisted you into the business following the departure of Geoff Lewis in 2005. To this end, on behalf of the Council I am prepared to offer you the sum of $250,000 for the commercial premises located at 92 Massingham Street and the house located at lot 101(6) Bedford Street Kellerberrin. I believe that the offer represents fair market value for the two properties at present.
This offer is valid until close of business on Friday 16 April 2010. The offer stated is genuine however, if you wish to discuss or negotiate this matter further, I welcome you contacting me prior to the closure of the offer period.
Mr Nyoni never responded to the offer from Mr McDonnell.
On Tuesday, 13 April 2010, Mr Bateman and Mr van Bronswijk travelled to Kellerberrin together and both attended the Kellerberrin pharmacy on the same day. Prior to attending the pharmacy, Mr van Bronswijk and Mr Bateman had a meeting with Mr Friend and Mr Tucker of the Shire.
Mr Bateman subsequently provided a report to Ms Anna Gelavis of the Health Department stating that the examination of the pharmacy’s addictive drugs register was unremarkable and that he could find no evidence of non-compliance with the Poisons Regulations.
In his report of the 13 April 2010 visit, Mr van Bronswijk noted that the pharmacy did not have complying scales, the 2010 edition of the reference book, and that there were some items of expired stock. Mr van Bronswijk went on to say that as far as the overall condition of the pharmacy was concerned, it was now in an acceptable state, compared to the condition of the pharmacy shown in photographs supplied by the Shire four weeks earlier.
On 13 April 2010, a member of the secretariat of the ACPA responded to Mr Haase’s letter of 15 February 2010 (see [97] above). The letter included the following paragraph:
The Australian Community Pharmacy Authority (the Authority) considers all applications to establish a new pharmacy or relocate an existing pharmacy to determine whether the requirements of the [Pharmacy Location Rules] have been satisfied. An application to establish a new pharmacy in Kellerberrin was assessed against the Rules by the Authority at its meeting on 26 February 2010. As the application met the requirements of the rules, the Authority was required to recommend to the Delegate in Medicare Australia that the application be approved.
The letter then went on to state that the letter raised matters relating to the professional practice of a particular pharmacist and that those complaints were matters for the Pharmaceutical Council. Mr Haase sent a copy of this letter and his response to that letter to Mr McDonnell.
On 16 April 2010, a petition was released for circulation in Kellerberrin. The petition was headed “Kellerberrin Pharmacy Users”, and beneath that heading were the words:
Please sign the petition below if you feel dissatisfied with the services of our local Pharmacy located at 92 Massingham Street, Kellerberrin.
During the period 16 April 2010 to 2 June 2010, whilst the petition was in circulation, 149 people signed the petition.
On 3 May 2010, the electrical power to Mr Nyoni’s pharmacy was again disconnected. On the next day, an officer of the Shire telephoned Mr Bateman and advised him that the electrical power to the pharmacy had been disconnected “sometime yesterday”.
On 4 May 2010, Mr Friend, using the “contact us” form on the Department of the Premier and Cabinet website, sent the following message to the Minister for Health:
Minister, you are aware of the operations of the Kellerberrin Pharmacy and in its inability to provide the required service to the people of Kellerberrin and surrounding district. Once again the Pharmacist has had his power disconnected at the shop and residence. How will the temperature sensitive drugs be safely stored and when will you provide the necessary leadership by closing this “facility” down and revoking the licence from Mr Nyoni?
I reject Mr Friend’s evidence that he did not send the message. That is inconsistent with the objective evidence, particularly, the fact that the Minister responded to Mr Friend. The letter which Mr Friend received in response included the following paragraphs:
The DoH has contacted Mr Nyoni regarding the power cut. Mr Nyoni advised that he had arranged for alternative storage of the refrigerated items at the time. It appears that Mr Nyoni followed the correct procedure by removing the temperature sensitive drugs to an alternative refrigerator. Mr Nyoni advised an officer of the DoH that there has been no further loss of power since 18 March 2010.
The complaints relating to the competency of Mr Nyoni to practise as a pharmacist are matters managed by the Pharmaceutical Council of WA under the Pharmacy Act 1964. I understand that the Pharmaceutical Council is addressing the situation.
Also, in May 2010, there was a meeting which was chaired by Mr Haase which was attended by Mr Friend, as well as Mr van Bronswijk and representatives of the Health Department about the Kellerberrin pharmacy. At the meeting, Mr Friend referred to the circumstance of Colac, a regional town in Victoria, of similar size to Kellerberrin, which had succeeded in getting approval for a second pharmacy within the shire boundaries. Mr van Bronswijk who had some knowledge of the pharmacy location rules pursuant to which PBS approval numbers were issued, said that he would look into the matter.
In June 2010, Mr Raymond Griffiths, the deputy chief executive officer of the Shire, was the acting chief executive officer of the Shire in Mr Friend’s absence. On 21 June 2010, Mr Griffiths received a report from an employee of the Shire that Mr Nyoni was seen driving out of Kellerberrin and that Mrs Nyoni was alone in the pharmacy. Mr Griffiths sent an email to Mr van Bronswijk in the following terms:
One of our staff has just been issued with scripts for people in Tammin.
We noticed that Emson left town about half an hour ago and she is in the shop by herself. Is there anything we can do.
On the next day, Mr Griffiths received a call from a customer of the Kellerberrin pharmacy who said that she had presented a script to Mrs Nyoni and had been supplied with generic medicines in circumstances where, said the customer, the script had precluded the supply of generic medicines. Mr Griffiths then emailed Mr van Bronswijk in the following terms:
Around 4.20 pm yesterday afternoon I fielded a call from Mrs Pauline Graham as she was disgusted with the service she had been provided. Mrs Graham had a script which advised that it was not to be changed with Generic drugs. Mrs Nyoni was adamant that the script can be filled by generic drugs, Mrs Graham asked for the script back and left the chemist.
As the Council was aware that Mr Nyoni was not in the chemist we asked Mrs Graham if she would go back and try to get the remainder of the script filled to see whether or not Mrs Nyoni is dispersing drugs. Mrs Graham entered the shop around 4.40 pm and was getting her script filled until our Manager Development Services went into the shop and then she quickly advised that this could not be filled because Mr Nyoni was not there.
The script was dropped off later that afternoon at 5.30 pm. Tom and I went around and he wasn’t back then.
Mr van Bronswijk then instituted an investigation in relation to the matters the subject of Mr Griffith’s two emails and later issued Mr Nyoni with a notice to produce documents pursuant to s 31C of the Pharmacy Act. This investigation did not lead to any disciplinary action being taken by the Pharmaceutical Council because it ceased to exist in October 2010, before the investigation was completed.
At a date unknown, but prior to 15 July 2010, the Shire approached a pharmacy consultant, Mr Rollo Manning, in relation to how the Shire should proceed in relation to Mr Nyoni and the Kellerberrin pharmacy. In an email dated 15 July 2010 to Dr Robertson, Mr Friend described Mr Manning’s role as “assisting Council and making inquiries on its behalf”. In an email to Dr Felicity Jefferies of the Health Department, on 21 July 2010, Mr Manning stated that he had been asked to “make some preliminary inquiries and to report back to the Shire of Kellerberrin with some recommendations on how they should proceed given sufficient evidence to warrant action” about the quality of the pharmaceutical care being given to the residents of Kellerberrin.
Mr Manning was communicating with Dr Jefferies in order for him to obtain the permission of the Health Department to speak to Ms Beech about her complaints about the Kellerberrin pharmacy. The Health Department refused that permission.
On Sunday, 1 August 2010, Mr Friend met with the Minister for Health, Dr Kim Hames, about Mr Nyoni and the Kellerberrin pharmacy.
On 14 October 2010, Mr Mitchell disconnected the electrical power to the Kellerberrin pharmacy by entering the pharmacy in the afternoon and removing the fuses from the meter box which was located inside the pharmacy premises. Before he disconnected the electricity, Mr Mitchell advised Mr Friend that he intended to disconnect the electricity to Mr Nyoni’s pharmacy later that day. Mr Friend then passed that information on to Mr van Bronswijk and the Health Department. It was common ground that the disconnection was carried out without the authority of the supplier of the electricity to Mr Nyoni’s pharmacy.
This incident is the subject of a claim in this proceeding and I will deal with this matter in detail later in these reasons.
In January 2013, Mr Nyoni entered into a contract with Mr Chee Koon Hee for the sale of the Kellerberrin pharmacy for a sale price of $255,000 including goodwill of $195,000.
Mr Nyoni subsequently sought to resist specific performance of the contract for the sale of the pharmacy but was unsuccessful in these attempts and the pharmacy was transferred to the purchaser in about April 2014.
On 23 January 2013, Mr Nyoni was convicted in the Magistrates Court of Western Australia on six counts of contravention of the Poisons Regulations. The evidence in support of the charges was from two representatives of the Health Department who had attended the Kellerberrin pharmacy premises on 17 August 2011. Mr Nyoni was fined a total of $14,000 and ordered to pay costs of $2,500. On 26 July 2013, the fine was reduced on appeal by EM Heenan J (Nyoni v Murphy [2013] WASC 298) to a total of $10,000.

As a consequence of his conviction, Mr Nyoni’s authority to store and supply Sch 8 substances was revoked by the Health Department in or about May 2013.
I make findings of fact in relation to the matters set out at [39] to [137] above.
WITNESSES
The applicant’s witnesses
Mr Nyoni, Mrs Amira Nyoni, Dr Arthur Pappas, Ms Karen Goodall-Smith, Ms Shyra Coleman and Mr Gavin Van Der Linden gave evidence in support of Mr Nyoni’s case.
Mrs Amira Nyoni
Mrs Nyoni gave evidence and was cross-examined.
Mrs Nyoni gave evidence in her second language. There was an element of passion in the manner in which Mrs Nyoni gave her evidence.
I have formed the view that Mrs Nyoni was conscious of the claims made by her husband and on occasions fashioned her evidence to assist his case. This was particularly so in relation to the evidence about Mr Peczka attending the pharmacy in October 2007. However, there were other occasions when the passion with which Mrs Nyoni gave her evidence imbued her evidence with a ring of truth. This was particularly so in relation to the evidence she gave about the disconnection of the electricity by Mr Mitchell on 14 October 2010.
Accordingly, I have approached Mrs Nyoni’s evidence with some caution. However, I have accepted parts of Mrs Nyoni’s evidence, and not accepted other parts.
Mr Emson Nyoni
Mr Nyoni gave evidence and was cross-examined.
There were a number of unsatisfactory aspects to Mr Nyoni’s evidence.
Mr Nyoni was deliberately obstructive in giving his evidence. During cross‑examination, Mr Nyoni was taken at some length to a number of photographs showing the condition of the pharmacy premises which Mr van Bronswijk and Mr Tucker had taken whilst inspecting the pharmacy. Mr Nyoni was obstructive in answering questions in relation to the photographs. Even when it was obvious that a photograph was of an aspect of the pharmacy, Mr Nyoni refused to verify the photograph as being a photograph taken in the pharmacy.
Further, I formed the view that Mr Nyoni’s evidence to a large extent was coloured by his preconceived views, and that his evidence was largely tailored to give effect to those views.
I have approached Mr Nyoni’s evidence with caution. I have not accepted parts of Mr Nyoni’s evidence, but have accepted other parts.
Dr Arthur Pappas
Dr Pappas gave evidence and was cross-examined. Dr Pappas is a qualified pharmacist. He has a Masters degree in Pharmacy and is a Doctor of Philosophy in Pharmacy from Monash University.
Dr Pappas also deposed that he had worked in rural pharmacies for more than six years. Dr Pappas gave evidence as to the practice of a pharmacist in a small rural community.
Dr Pappas was a satisfactory witness, but his evidence has not been of assistance in resolving the issues in dispute between the parties.
Ms Karen Goodall-Smith
Ms Goodall-Smith is a qualified psychologist who gave evidence as to Mr Nyoni’s state of mind. Ms Goodall-Smith was a reliable witness. However, by reason of the limitations upon her opportunity to consult with Mr Nyoni, I have placed no weight upon her evidence.
Ms Shyra Coleman
Ms Coleman was a person who cleaned Mr Nyoni’s pharmacy. Ms Coleman was a good and credible witness.
Mr Gavin Van Der Linden
Mr Van Der Linden is an accountant. He purported to give expert evidence in relation to the economic losses which Mr Nyoni suffered.
The respondents objected to the Court receiving Mr Van Der Linden’s report as an expert report, on the basis that the views expressed in the report did not involve the application of any professional expertise. I provisionally admitted Mr Van Der Linden’s report as an expert report, and said I would rule on that objection later.
In my view, the respondents’ objection should be upheld. The methodology used by Mr Van Der Linden to project the loss of profits did not involve the application of professional skill and expertise. Accordingly, the report is not admitted as an expert report. I have placed no weight on Mr Van Der Linden’s report and evidence.
The respondents’ witnesses
Each of the respondents gave evidence. They also called evidence from Mr Robert Bateman, Mr Garry Tucker, Mr Raymond Griffiths, Mr Timothy van Bronswijk, Ms Bernice Del Borrello, Mr Kevin Cleverly and Mr Kerry Varney.
Mr Robert Bateman
Mr Robert Bateman gave evidence and was cross-examined. Mr Bateman was until 2011, a senior investigating officer employed by the Health Department.
In light of the findings I have made below and the fact that there are pending proceedings against Mr Bateman in the Supreme Court of Western Australia in respect of the same allegations as made against him in this proceeding; and that Mr Bateman is not a party to this proceeding, it is, in my view, not appropriate to comment upon Mr Bateman as a witness.
Mr Darren Friend
Mr Friend gave evidence and was cross-examined.
Mr Friend was an unsatisfactory witness.
Mr Friend was a very defensive and evasive witness who sought to minimise his role in taking steps contrary to Mr Nyoni’s business interests. I have below referred to aspects of Mr Friend’s evidence which were implausible, unsatisfactory or contrary to objective fact. I have, therefore, approached Mr Friend’s evidence with caution, and I have not accepted parts of his evidence, but I have accepted other parts.
Mr Peter Mitchell
Mr Mitchell gave evidence and was cross-examined. Mr Mitchell was an unsatisfactory witness. I formed the impression that Mr Mitchell was not averse to making up evidence as he went along. I have approached Mr Mitchell’s evidence with caution and I have not accepted parts of his evidence, but I have accepted other parts.
Mr Garry Tucker
Mr Tucker also gave evidence and was cross-examined. Mr Tucker was an unconvincing witness. I have accepted Mr Friend’s evidence that he asked Mr Tucker to carry out an inspection of Mr Nyoni’s pharmacy on 17 March 2010, rather than Mr Tucker’s evidence that he acted of his own accord in carrying out the inspection.
Mr Frank Peczka
Mr Peczka gave evidence and was cross-examined. Mr Peczka was a satisfactory witness and I have accepted his evidence.
Mr Stanley McDonnell
Mr McDonnell gave evidence and was cross-examined.
Mr McDonnell, in my view, was a credible witness who gave evidence to the best of his ability.
Mr McDonnell did not seek to deny that the Shire had taken steps to assist a rival pharmacist to obtain a PBS approval number, and wanted to replace Mr Nyoni with another pharmacist.
However, there is an aspect of Mr McDonnell’s evidence that I do not accept. That aspect relates to his evidence as to when he first heard that Mr Nyoni had been successful in his application for a new PBS approval number. Mr McDonnell was, when questioned by the Court, somewhat vague in his recollection as to whether, when he wrote the letter on 31 March 2010, offering on behalf of the Shire to purchase Mr Nyoni’s house and business premises, he already knew that Mr Nyoni had been awarded the new PBS approval number and that the rival application had been unsuccessful.
During Mr McDonnell’s re-examination, however, counsel for the second to fourth respondents showed Mr McDonnell letters from Mr Haase written in April 2010 which inferred that Mr Nyoni had been re-awarded the PBS approval number. Mr McDonnell, having been shown those letters, somewhat hesitantly, said that he would have first found out that Mr Nyoni’s application had been successful about the time of those letters.
However, I find that by the time that Mr McDonnell signed the letter offering to purchase on behalf of the Shire Mr Nyoni’s pharmacy premises and the house, Mr McDonnell was already aware that Mr Nyoni had been the successful candidate for the PBS approval number.
This is because Mr McDonnell said in evidence, that before writing the letter, the proposal to make the offer and the amount to be offered to Mr Nyoni, was discussed at a meeting with a number of senior Shire officers. By 31 March 2010, Mr Friend had known for about two weeks that Mr Nyoni had been successful in his application for the PBS approval number. It is inconceivable that Mr Friend would not have passed that information on to Mr McDonnell and the other senior officers of the Shire who attended that meeting. Further, there would have been no need to resort to making the offer (as Mr McDonnell put it) “as the best course…left to us” if those present at the meeting believed that the selection process was still pending, and there was still a prospect that Ms Ashburn’s application for the PBS approval number would be successful.
Ms Bernice Del Borrello
Ms Del Borrello gave evidence and was cross-examined.
At the times relevant to this proceeding, Ms Del Borrello was an enrolled nurse and was employed by the Kellerberrin hospital as the home and community care nurse and coordinator.
In my view, Ms Del Borrello was a satisfactory witness.
Mr Raymond Griffiths
Mr Griffiths gave evidence and was cross-examined. At the relevant times for this proceeding, Mr Griffiths was the deputy chief executive officer of the Shire.
Mr Griffiths was a satisfactory witness.
Mr Timothy van Bronswijk
Mr van Bronswijk gave evidence and was cross-examined.
In my view, Mr van Bronswijk was a satisfactory witness.
Mr Kevin Cleverly
Mr Cleverly gave evidence and was cross-examined. Mr Cleverly was at the time of the trial a 77 year old resident of Kellerberrin. Mr Cleverly was an unreliable witness because of his admitted problem with his memory. No weight can be placed on the evidence of Mr Cleverly.
Mr Cleverly’s evidence-in-chief was given by way of a witness statement which had been signed by Mr Cleverly only 18 days before he gave evidence. In that witness statement, he said that he had stopped using the pharmacy in 2010, and he said that since 2010, he had used the pharmacy in either Cunderdin or Merredin. However, when asked in cross-examination, he said he could not remember when he last used the Kellerberrin pharmacy. Mr Cleverly then went on to respond to several questions by saying that he had problems with his memory. At 974 of the transcript the following exchange occurred with the Court:
Do you remember that, Mr Cleverly? You don’t remember any of this?
Yes. And further - - -?---I can’t help what – what – the condition I’m in now, your Honour.
Sorry, Mr Cleverly?---I said, I’m sorry. I can’t – in my present state here - - -
Yes?---On my – at home, if I go outside to do something, soon as I’m outside I forgot what I’m supposed to be doing. That’s how I am most of the time. At this time now. And that’s why my memory is just slowly going.
In particular, I do not, for the following additional reasons accept Mr Cleverly’s evidence that he had single-handedly produced from his computer the documents which comprised the petition expressing dissatisfaction with the services of the Kellerberrin pharmacy, and then procured the signature of the persons who signed the petition.
First, Mr Cleverly said that it only took him a couple of days to get all the signatures for the petition. However, the objective evidence of the dates on which persons signed the petition shows that persons signed the petition up to a month after the date on which the first person signed the petition. In other words, the date range of the signatures on the petition does not reflect Mr Cleverly’s evidence that the signatures were collected within a couple of days.
Secondly, I do not accept Mr Cleverly’s evidence that the documents comprising the petition were a product of his own efforts. This is because when I asked Mr Cleverly which computer program he had used to produce the documents, Mr Cleverly was not able to identify the program and was unconvincing in describing the process for the production of the blank petition documents.
Mr Kerry Varney
Mr Kerry Varney controlled a company, Cali-Valle Developments Ltd. That company had a business relationship with Synergy whereby Synergy, among other things, engaged Cali‑Valle to disconnect the electricity of customers of Synergy who were in default of their payment obligations to Synergy.
Mr Varney was a satisfactory witness.
THE CLAIMS
I deal with each of the claims individually.
TRESPASS – MR BATEMAN’S ATTENDANCE AT THE KELLERBERRIN PHARMACY IN OCTOBER 2007
I deal first with the allegation that on 2 and 3 October 2007, Mr Bateman trespassed upon the pharmacy premises and that Mr Peczka acted in concert with Mr Bateman, with the consequence that the Shire and Mr Peczka are liable as joint tortfeasors to Mr Nyoni in damages.
I should observe that Mr Bateman is not a party to this proceeding. However, Mr Bateman is the defendant in an action brought against him by Mr Nyoni in the Supreme Court of Western Australia (CIV 2610 of 2010) in respect of the same conduct.
I mention in passing that the statement of issues refers to Mr Bateman entering the pharmacy on 14 October 2007, but at the trial it was common cause that the date of 14 October 2007 was an error, and the case proceeded on the basis of Mr Nyoni’s allegation that Mr Bateman had trespassed by entering the pharmacy on 2 and 3 October 2007.
Mr Nyoni contended that Mr Bateman entered the pharmacy on 2 and 3 October 2007 for a purpose which went beyond the scope of the authority conferred on Mr Bateman pursuant to s 54 of the Poisons Act. More specifically, Mr Nyoni contended that Mr Bateman entered the pharmacy premises for the purpose of engaging in conduct which went beyond the powers granted under s 54 of the Poisons Act as part of an investigation of Mr Nyoni’s professional conduct generally, and not for an investigation confined only to matters arising under the Poisons Act.
Mr Nyoni also contended that, whilst s 54 of the Poisons Act gave Mr Bateman authority to enter the Kellerberrin pharmacy, and to carry out the limited range of prescribed activities referred to in that section, when Mr Bateman was on the pharmacy premises, Mr Bateman actually engaged in activities which exceeded the authority given to him by s 54 of the Poisons Act; and that Mr Bateman, thereby, became a trespasser.
Mr Nyoni’s point was that the question of whether a pharmacist has made dispensing errors in the assembly of Webster packs or otherwise, was a matter which was within the jurisdiction of the Pharmaceutical Council under the Pharmacy Act, and not a matter which was within the jurisdiction of the Health Department under the Poisons Act. Accordingly, claimed Mr Nyoni, by entering the Kellerberrin pharmacy with the purpose of investigating the complaints made against him in respect of dispensing errors and other professional conduct matters within the jurisdiction of the Pharmaceutical Council, Mr Bateman thereby exceeded the authority given to him under s 54 of the Poisons Act, and so was a trespasser.
Mr Nyoni’s alternative allegation is that, even if he entered lawfully, by investigating dispensing errors and other matters outside of the jurisdiction of the Poisons Act, Mr Bateman thereby exceeded his authority, and became a trespasser.
Mr Peczka, claimed Mr Nyoni, acted in concert with Mr Bateman and so he and the Shire were liable as joint tortfeasors with Mr Bateman.
As to the first of Mr Nyoni’s contentions, Mason J in Barker v The Queen (1983) 153 CLR 338 (Barker) at 346 observed:
A person who enters premises for a purpose alien to the terms of the licence given him to enter the premises enters as a trespasser. It is a matter of determining the scope of the authority to enter, which the licence or invitation confers. If a person enters for a purpose outside the scope of the authority then he stands in no better position than a person who enters with no authority at all. His entry is unrelated to the authority.
The second of Mr Nyoni’s contentions, in effect, invokes the so-called doctrine of trespass ab initio.
The doctrine was described by Brennan and Deane JJ at 363-364 in Barker as applying when “a person who had authority under the general law to enter and be upon land would become a trespasser ab initio if he abused his authority”.
In the case of Cinnamond v British Airports Authority [1980] 1 WLR 582 at 588, Lord Denning MR described the doctrine in the following terms:
Applying that principle to this case, it seems to me that when one of these car-hire drivers picks up a passenger at a London hotel and drives to the airport, he has a right to enter so as to drop his passenger and luggage. But the driver has no right whatever to hang about there so as to “tout” for a return fare. By so doing he is abusing the right which is given to him by the law: and that automatically makes him a trespasser from the beginning.
I now deal with the law in relation to the circumstances whereby a person may become liable as a joint tortfeasor even though that person did not commit the acts comprising the tort. This is relevant to Mr Nyoni’s contention that Mr Peczka is liable as a joint tortfeasor for the alleged trespass of Mr Bateman because he acted in concert with Mr Bateman.
In the case of Fish & Fish Ltd v Sea Shepherd UK [2015] AC 1229 (Fish & Fish), the Supreme Court of England and Wales engaged in a close analysis of the elements of liability as a joint tortfeasor by way of participating in a common design.
In that case, a vessel, the Steve Irwin, in open seas off Malta, rammed into a vessel which was towing cages containing live bluefin tuna from Libya to a fish farm operated by the claimant. A cage which was being towed was damaged and divers from the Steve Irwin released just over half of the claimant’s catch of fish into the sea.
The ramming of the vessel and the cages took place as part of a conservation campaign named “Operation Blue Rage” run by Sea Shepherd Conservation Society (SSCS), an Oregon corporation.
The legal title to the vessel, the Steve Irwin, was held by Sea Shepherd UK Ltd (SSUK) an English company, which was a registered charity.
The claimant commenced proceedings for trespass and/or conversion to its property against SSUK, SSCS and Mr Paul Watson who was the founder of SSCS and the master of the vessel, the Steve Irwin, at the time of the ramming. The claimant claimed damages in the sum of EUR760,148. There was a preliminary issue as to whether SSUK was liable as a joint tortfeasor for the ramming which damaged the claimant’s property.
The claimant alleged that SSUK was a joint tortfeasor because it acted in furtherance of the common design with the primary tortfeasor. The evidence established that SSCS had distributed a document promoting the “Operation Blue Rage” campaign in the United Kingdom which solicited donations from its supporters in the United Kingdom. The document included the name and address of SSUK as the body to which the donations should be sent. Donations totalling GBP1,730 were sent to SSUK as a consequence of the distribution of the document, and SSUK forwarded that money to SSCS.
The question was whether the conduct of SSUK gave rise to a liability as a joint tortfeasor for the tort of trespass allegedly engaged in by Mr Watson and SSCS.
Lord Toulson JSC observed as follows:
19Joint liability in tort may arise in a number of ways. Two or more defendants may act as principal tortfeasors, for example by jointly signing and publishing a defamatory document. A defendant may incur joint liability by procuring the commission of a tort by inducement, incitement or persuasion: CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013, 1058, per Lord Templeman. A defendant may incur vicarious joint liability for a tort committed by an agent or employee. We are not concerned in this appeal with any of those heads of liability.
20We are concerned with a different category in which the defendant, D, has allegedly assisted the principal tortfeasor, P, in the commission of tortious acts…
21To establish accessory liability in tort it is not enough to show that D did acts which facilitated P’s commission of the tort. D will be jointly liable with P if they combined to do or secure the doing of acts which constituted a tort. This requires proof of two elements. D must have acted in a way which furthered the commission of the tort by P; and D must have done so in pursuance of a common design to do or secure the doing of the acts which constituted the tort. I do not consider it necessary or desirable to gloss the principle further.

Secondly, the whole tenor of the minutes is to the effect that the Council has decided to expend public monies in attracting a rival pharmacist to Kellerberrin to provide the services to the Kellerberrin community which Mr Nyoni’s pharmacy was failing to provide. The inference which an ordinary and reasonable member of the Kellerberrin public would draw from the fact that the Council had decided to expend public monies for that purpose, is that the complaints as to the shortcomings of the pharmacy were well-founded and that the Council had decided to do something about it.
However, it is also the case, that an ordinary and reasonable member of the Kellerberrin public would have understood some of the representations to be made in different terms to the bland and general terms alleged by Mr Nyoni. I will identify those differences when dealing with each of the representations falling into that category below.
Whether the representations were false
It was incumbent upon Mr Nyoni to establish the falsity of each of the representations relied upon. I deal with each of the representations alleged.
(a) Unacceptable service
The first representation which Mr Nyoni contended was made, and was false, is that he provided unacceptable service to his customers and had done so for a number of years.
Mr Nyoni did not lead any specific evidence by way of survey evidence or otherwise, as to whether his customers had regarded the services provided by his pharmacy as acceptable.
On the other hand, the respondents relied upon the inferences to be drawn from the fact that contracts for the supply of Webster packs by the Kellerberrin pharmacy, were terminated in 2007 by three of the pharmacy’s important customers because each held the view that the services provided by Mr Nyoni were unacceptable.
Further, the respondents pointed to the fact that in 2010, a petition recording dissatisfaction with the services provided by Mr Nyoni, was circulated and signed by 149 persons out of the total population of Kellerberrin of 900. This, said the respondents, demonstrated a significant level of dissatisfaction existed in the community.
I am conscious that the petition was circulated and signed by members of the public after the publication of the minutes. However, there was evidence from Mr Peczka, Mr Griffiths and Mr Friend, which I accept, that for a number of years prior to the publication of the minutes, complaints had been made regularly to them by members of the public. Further, there was no evidence to the effect that the negative public sentiment reflected in the petition arose by reason of any event which occurred after 16 February 2010 and before the circulation of the petition.
In my view, there is substance in the respondents’ contention. I find that Mr Nyoni has not discharged the burden of proof in establishing that the representation was false.
(b) Community dissatisfaction
The second representation that Mr Nyoni alleged was made, and was false, was that the community was dissatisfied with the service provided by Mr Nyoni.
An ordinary and reasonable member of the Kellerberrin public would have understood the representation to be that for a number of years prior to February 2010, the community was dissatisfied with the services provided by Mr Nyoni.
The same observations as I have made in relation to the previous representation apply mutatis mutandis in relation to this representation.
Accordingly, in my view, Mr Nyoni has failed to discharge the burden of proof in establishing that this representation was false.
(c) Complaints to the Shire
The third representation which Mr Nyoni said was made, and was false, was that complaints had been made on a regular basis to the Shire. An ordinary and reasonable member of the Kellerberrin public would have understood this representation to refer to the complaints made in the years prior to February 2010.
Each of Mr Peczka, Mr Griffiths and Mr Friend gave evidence, which I accept, that members of the Kellerberrin public regularly complained to them about the identified shortcomings of the pharmacy. Mr Nyoni did not adduce any evidence capable of falsifying that evidence.
As previously mentioned, the extent of dissatisfaction with the services provided by the pharmacy is also reflected in the relatively large number of persons who signed the petition.
It follows that I find Mr Nyoni has failed to discharge the burden of proof of establishing that the representation was false.
(d) The pharmacy had irregular hours of opening
The representation relied upon by Mr Nyoni that the pharmacy had irregular hours of opening is at a high level of generality. In my view, an ordinary and reasonable member of the Kellerberrin public would have understood this representation to mean that during the years before February 2010, there had been legitimate complaints made that the pharmacy was not consistently open during ordinary working hours. Thus, the representation, in essence, was that, during the years leading up to February 2010, the pharmacy had not been consistently open during ordinary working hours.
As I understood Mr Nyoni’s evidence, he said that during the period in question, the pharmacy opened late on four to six occasions per year and that the pharmacy was not open at all, when it would otherwise have been opened, about three or four times a year. Mrs Nyoni, on the other hand, gave evidence that the pharmacy was always open on time at 9:00 am.
The respondents, however, adduced evidence from each of Mr Peczka, Mr Griffiths, Mr Friend, Mr Varney and Ms Del Borrello, that each had personally observed that the pharmacy had on various days opened late or was not open at all when it ought to have been open. Ms Del Borrello said that in her experience, the pharmacy was closed during ordinary working hours without notice, once every two or three weeks. Mr Varney gave evidence to similar effect in relation to the difficulty he experienced in reading the electricity meter in the pharmacy.
Further, there was the evidence of Mr van Bronswijk that he advised Mr Nyoni in advance of his visit to the pharmacy on 4 March 2009. However, said Mr van Bronswijk, when he arrived at the pharmacy on 4 March 2009 it was closed. Mr van Bronswijk said that from conversations between potential customers which he had overheard whilst at the pharmacy, he gained the impression that the customers who were trying to access the pharmacy, had not been forewarned that it would be closed.
I accept the evidence adduced by the respondents, and prefer it to the evidence of Mr Nyoni and Mrs Nyoni.
I find, therefore, that Mr Nyoni has not discharged the burden of proof of establishing the falsity of this representation.
(e) The pharmacy was in a dirty state
Mr Nyoni contended that the representation that was made, and was false, was that the pharmacy was in a dirty state. The representation is, like the preceding alleged representation, in very general terms.
In my view, an ordinary and reasonable member of the Kellerberrin public would have understood the representation to mean that during the years before February 2010, there were legitimate complaints made that the pharmacy was in a dirty state. Thus, the representation, in essence, was that in the years before February 2010, Mr Nyoni had not consistently maintained the pharmacy in a clean state.
Mr Nyoni did adduce evidence in support of his contention that this representation was false.
Mr Nyoni said that he had since 2007, engaged persons to clean the pharmacy premises. Mr Nyoni called as a witness, Ms Coleman, who was one of the persons who had cleaned the pharmacy. Ms Coleman said in her witness statement, that she had been commenced cleaning the Kellerberrin pharmacy in 2008. Ms Coleman said that she had cleaned the pharmacy on a voluntary basis, at least twice a week, and sometimes more. Ms Coleman said that she had taken a number of photographs of the condition of the pharmacy which reflected the pharmacy in a clean condition.
In cross-examination, Ms Coleman said that she was sent a prepared witness statement by Mr Nyoni. She said that she read the witness statement and signed it because she believed it to be correct.
During cross-examination, she was also taken to a number of photographs which had been taken by Mr Tucker during his inspection of the pharmacy in March 2010, which showed that the shelves were dirty and that the cupboard under the sink was dirty and that the washbasin was also dirty. Ms Coleman recognised each of the photographs as being taken in the pharmacy, but disputed that the pharmacy had been in the condition reflected in the photographs, during the time that she had been engaged as a pharmacy cleaner.
Ms Coleman, during cross-examination, accepted that she may not have been correct in saying in her witness statement that she commenced cleaning the pharmacy in 2008, because the photographs taken by Mr Tucker reflected the pharmacy to be in a state of uncleanliness with which she was not familiar. She postulated that she must have commenced cleaning the pharmacy at a date later than the date on which the latest of the photographs was taken. I find that Ms Coleman was not engaged as a cleaner of the pharmacy in 2008 as was stated in her witness statement, and that she only commenced working in the pharmacy as a cleaner after 17 March 2010.
Mr Nyoni also tendered a number of photographs of the state of the pharmacy premises, which showed that the pharmacy was in a clean state. Mr Nyoni said that he had sent the photographs to the Registration Board. However, Mr Nyoni went on to say that the photographs were taken after February 2010, and, therefore, reflected the state of the pharmacy after February 2010. This evidence does not assist Mr Nyoni.
The respondents relied on the evidence of Mr Bateman and Mr van Bronswijk to show that the pharmacy was not consistently maintained in a clean and tidy state in the years leading up to February 2010.
Mr Bateman’s evidence was that on his first visit to the pharmacy on 2 October 2007 the pharmacy was in an untidy and disorganised state. Mr Bateman said that there was rubbish strewn all over the floor at the back of the pharmacy and the sink was filthy.
Mr Bateman carried out further inspections of the pharmacy in 2007, 2008 and April 2010, and his evidence was that, based on his experience as a senior investigating officer, and having attended and inspected scores of pharmacies, that the state of Mr Nyoni’s pharmacy in terms of hygiene, cleanliness and appearance was one of the worst that he had seen.
Mr van Bronswijk’s evidence was that when he carried out his first visit to Mr Nyoni’s pharmacy on 12 June 2008 – which was eight months after Mr Bateman’s first visit – the condition of the pharmacy was “extremely poor”.
Mr van Bronswijk’s report states that the external appearance of the pharmacy was shabby and run down, the shelves were covered in dust and the stock in several instances was similarly dusty or dirty, the carpet was dirty and stained, the extemporaneous dispensing area and the sink were very dirty and all of the equipment required a thorough clean, and that the area which had formerly been used for photographic processing was used as a dumping ground for junk.
Mr van Bronswijk in his report on his visit on 22 October 2008, noted that after some improvement in the condition of the pharmacy evident in his visit on 31 July 2008, some of the dustiness had returned and there were many cobwebs in the corner of the pharmacy. Mr van Bronswijk observed in his report that it appeared that Mr Nyoni was not sufficiently motivated to maintain the premises at an acceptable standard without constant review and reminder.
In his report of his visits in March 2009, Mr van Bronswijk reported that the pharmacy was in a better state of cleanliness than when he had visited it in October 2008; and in his report of his visit on 3 July 2009, Mr van Bronswijk said that the pharmacy was in as neat and tidy a state of repair as he had seen.
Mr van Bronswijk did not thereafter visit the pharmacy until April 2010.
In the meanwhile, Mr Tucker had carried out and inspection of the pharmacy on 17 March 2010 which had shown that the pharmacy was again in a dirty state.
In his report of his visit in April 2010, Mr van Bronswijk said that Mr Tucker’s photographs showed a level of deterioration in the cleanliness of the pharmacy which “astounded him”. He repeated his observation that, in his view, Mr Nyoni was not sufficiently motivated to maintain the condition of the pharmacy without constant monitoring.
I accept the evidence of Mr Bateman and Mr van Bronswijk set out above.
Although Mr Tucker’s inspection post-dated the publication of the February 2010 minutes, the result of that inspection is consistent with Mr van Brongswijk’s assessment that the standard of cleanliness of the pharmacy fluctuated depending on the extent to which it was monitored.
I, accordingly find that Mr Nyoni has not discharged the burden of proof in establishing that in the years leading up to February 2010, he consistently maintained the condition of the pharmacy in a tidy and clean state.
(f) and (g) The pharmacy lacked stock and lacked prescription drugs
I deal with these two representations together.
An ordinary and reasonable member of the Kellerberrin community reading the minutes would construe the representations made, to be that the pharmacy did not consistently carry the range of stock normally carried by a comparable pharmacy; and in relation to the failure to carry prescription drugs, that the pharmacy had not consistently carried a sufficient stock of prescription drugs as would enable the pharmacy to fill the customers’ prescriptions on demand.
Mr Nyoni gave evidence that he kept computerised records in relation to the amount of stock and prescription drugs. However, the discovery of those records was not given and Mr Nyoni did not adduce in evidence the computerised records relating to the level of stock or to the level of prescription drugs.
In my view, it was open to Mr Nyoni to adduce evidence of the exact amount of the stock and prescription drugs which was carried during the years leading up to the publication of the minutes. However, Mr Nyoni did not adduce evidence which would have been available to him.
Further, there was evidence adduced by the respondents which undermined Mr Nyoni’s contention that the allegations about lack of stock and prescription drugs were false.
Mr van Bronswijk noted in his report of his inspection on 3 July 2009, that the stock, especially in the dispensary, was extremely low.
Further, Mr Bateman testified that he had inspected scores of pharmacies and the stock of regulated drugs reflected in Mr Nyoni’s drugs of addiction register on each of his inspections, was low compared to that of similar pharmacies that he had inspected.
Also, Ms Del Borrello gave evidence that while she was at the Kellerberrin hospital, people would frequently attend the hospital to obtain starter packs of medicines and tell her that this was because the pharmacy was either closed or did not have the required medications in stock. Ms Del Borrello said that her recollection was that this would occur on a weekly basis.
I accept the evidence of those three witnesses.
It follows that, in my view, Mr Nyoni has failed to discharge the burden of proof of establishing that the representations in relation to the lack of stock and prescription drugs were false.
(h) The community was not receiving access to essential services because of Mr Nyoni
This representation is also in very general and vague terms.
In my view, an ordinary and reasonable member of the Kellerberrin public would have understood the minutes to represent that a pharmacy providing adequate pharmacy services is one of the essential services needed for a community like Kellerberrin, and that the standard of pharmacy services provided by Mr Nyoni was, because of the nominated shortcomings, inadequate.
In other words, the representation raised no new allegations about the inadequacy of the provision of pharmacy services by Mr Nyoni.
In my view, it follows, therefore, that the findings which I have made in relation to each of the preceding representations apply mutatis mutandis to this representation.
The consequence is that by reason of Mr Nyoni having failed to discharge the burden of proof in demonstrating that each of the preceding representations was false, has also thereby failed to discharge the burden of proof in relation to demonstrating that this representation was false.
Causation
It was incumbent upon Mr Nyoni to establish that he had suffered loss and damage by reason of the alleged misleading or deceptive conduct.
Mr Nyoni adduced no evidence to the financial position of the pharmacy business as at 16 February 2010, nor any evidence of the deterioration of that financial position consequent upon the publication of the minutes. Mr Nyoni did not discharge the burden of proof in demonstrating that he suffered any loss or damage, by reason of the alleged misleading or deceptive conduct which, as I have said, is alleged to have occurred in February 2010.
DAMAGES
For the sake of completeness, I refer to the evidence which Mr Nyoni did adduce on loss and damage.
Mr Nyoni adduced evidence from two witnesses on the question of the loss and damage which Mr Nyoni claimed to have suffered.
In support of his claim that he had suffered economic loss and damage, Mr Nyoni put into evidence the annual financial statements of his pharmacy business as well as his service trust. Mr Nyoni also called as an expert witness, Mr Van Der Linden.
Mr Van Der Linden produced a report which set out the net annual profit figures which combined the service trust and the pharmacy business for the financial years 2005 to 2011.
The combined net profit figures for those financial years were as follows:

2005 2006 2007 2008 2009 2010 2011

…

Combined
Net Profit $183,687 $186,892 $81,270 $54,319 $111,616 - $13,401 $60,326

It is apparent from the combined net profit figures that the most profitable years were 2005 and 2006.
Mr Van Der Linden was only briefed to provide a report in support of Mr Nyoni’s claim for damages about a week before Mr Van Der Linden gave evidence. The report appears to support a claim that Mr Nyoni lost profits in the financial years ending 30 June 2007 to 30 June 2011 of $690,397. The loss of profits figure derived by Mr Van Der Linden, was based upon a shortfall between the projected profits which Mr Nyoni claims he would have earned but for the unlawful actions of the respondents and the profit which he did, in fact, earn. Mr Van Der Linden’s report reflects the difference in the projected profits and the actual profits earned.
The methodology used by Mr Van Der Linden to project the profits for the years 2007 to 2011, was to calculate the difference between the 2005 and 2006 profit results which reflected an increase in profits of 1.745% and then use that percentage to project on a straight line basis, the profit that would have been earned in each of the following years. In my view, this analysis is so simplistic as not to engage the application of professional skill and judgment, and so not qualify as an admissible expert opinion. I place no weight on the evidence.
The other witness was Ms Goodall-Smith. Ms Goodall-Smith’s report was relied upon by Mr Nyoni in support of his claim that he had by reason of the unlawful conduct of the respondents suffered emotional distress.
Ms Goodall-Smith is a clinical psychologist and holds a Masters of Applied Psychology from Murdoch University. Ms Goodall-Smith was consulted by Mr Nyoni by telephone on 5 July 2014.
Ms Goodall-Smith recorded in her report that Mr Nyoni said that he had developed a number of symptoms from about 2007 which had continued to the date of the consultation. The report stated that Mr Nyoni had said that he often feels a sense of hopelessness, sadness and cries sometimes. He has problems sleeping which he did not have before and Mr Nyoni said that some nights he could not sleep at all and other times he only got about one to two hours sleep. Mr Nyoni also said that he felt anxious and he had no appetite. In her conclusions, Ms Goodall-Smith said as follows:
There is no independent or formal assessment of Mr Nyoni’s psychological symptoms due to the nature and timing of the assessment interview, and the urgency of the report being required several days later, on Monday 8 July 2014. However, Mr Nyoni has described symptoms that point to a diagnosis of adjustment disorder with associated depression and anxiety (DSM IV TR). These symptoms appear to have resulted from ongoing stress resulting from perceived bullying and harassment…

During cross-examination, Ms Goodall-Smith said that her role was to determine “if there’s any psychological conditions that has happened as a result of how a person perceives what has happened to them”. Ms Goodall-Smith said that she was not able to determine that question in the course of an assessment over the telephone. She said: “In this case I was not able to do any objective assessments.”
Ms Goodall-Smith accepted in cross-examination that her assessment was incomplete. For that reason, I place no weight on Ms Goodall-Smith’s evidence.
I dismiss Mr Nyoni’s application filed on 28 October 2010 against each of the first to fourth respondents with costs.

I certify that the preceding four hundred and seventy-seven (477) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.
Associate:
Dated: 23 November 2015

Citation:	Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294
Parties:	EMSON NYONI v SHIRE OF KELLERBERRIN, DARREN FRIEND, STAN MCDONNELL, FRANK PECZKA and PETER MITCHELL
File number(s):	WAD 316 of 2010
Judge(s):	SIOPIS J
Date of judgment:	23 November 2015
Catchwords:	CONSUMER LAW – the Shire published minutes of a Council meeting on its website which referred to shortcomings in the provision of services by the local pharmacy – whether the conduct of the Shire is conduct “in trade or commerce” – whether the minutes made the representations about the shortcomings of the pharmacy alleged by the applicant. TORTS – trespass – whether an electrical contractor engaged in trespass when he entered the pharmacy premises to disconnect the electricity to the pharmacy – where the electrical contractor had advised a Shire officer in advance of his intention to disconnect the pharmacy’s electricity – whether the Shire officer is liable as a joint tortfeasor. TORTS – misfeasance in public office – where a Shire officer passes on misleading information to regulatory authorities – whether in passing on information the Shire officer was exercising a power or authority such as to attract potential liability for the tort.
Legislation:	National Health Act 1953 (Cth) s 90(1) Trade Practices Act 1975 (Cth) ss 6(3), 52 Poisons Act 1964 (WA) Schs 8, 9, ss 24, 24(3), 28, 52A, 54 Pharmacy Act 1964 (WA) ss 23, 26, 31A, 31D, 31E(1), 31E(2), 32(1)(c), 32(2), 32(3), 32(4) Fair Trading Act 1987 (WA) s 10 Local Government Act 1995 (WA) s 5.22 Poisons Regulations 1965 (WA) reg 44, 45, 56, 56E, 56F Local Government (Administration) Regulations 1996 (WA) reg 13 Federal Court Rules 2011 O 80
Cases cited:	Nyoni v Murphy [2013] WASC 298 Barker v The Queen (1983) 153 CLR 338 Cinnamond v British Airports Authority [1980] 1 WLR 582 Fish & Fish Ltd v Sea Shepherd UK [2015] AC 1229 Plenty v Dillon (1991) 171 CLR 635 New South Wales v Ibbett (2006) 229 CLR 638 Plenty v Dillon (1997) 194 LSJS 106 TCN Channel 9 v Anning (2002) 54 NSWLR 333 Leerdam v Noori (2009) 255 ALR 553 Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 Emanuele v Hedley (1998) 179 FCR 290 Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594
Date of hearing:	14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 28 and 29 July 2014
Date of last submissions:	6 August 2014
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	477
Counsel for the Applicant:	The Applicant appeared in person.
Counsel for the First Respondent:	Mr P McGowan
Solicitor for the First Respondent:	DLA Piper Australia
Counsel for the Second, Third and Fourth Respondents:	Mr P Jarman and Mr P Graham
Solicitor for the Second, Third and Fourth Respondents:	Jarman McKenna
Counsel for the Fifth Respondent:	The Fifth Respondent appeared in person.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 316 of 2010

JUDGE:	SIOPIS J
DATE OF ORDER:	23 NOVEMBER 2015
WHERE MADE:	PERTH

JUDGE:	SIOPIS J
DATE:	23 NOVEMBER 2015
PLACE:	PERTH

2005	2006	2007	2008	2009	2010	2011
…
Combined Net Profit	$183,687	$186,892	$81,270	$54,319	$111,616	- $13,401	$60,326