Re McWilliam - [1999] QSC 143

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  No.2045 of 1995
Before the Hon. Mr Justice Mackenzie
[re McWilliam v HIC & Ors]
BETWEEN:
  GEOFFREY DAVID McWILLIAM
  First Plaintiff
AND:
  MARGARET ANN McWILLIAM
  Second Plaintiff
AND:
  HEALTH INSURANCE COMMISSIONER
  First Defendant
AND:
  AUSTRALIAN COMMUNITY PHARMACY
  AUTHORITY
  Second Defendant
AND:
  COMMONWEALTH OF AUSTRALIA
  Third Defendant
AND:  R CANDY and THE SECRETARY, HEALTH
  INSURANCE COMMISSION
  Fourth Defendant

JUDGMENT - MACKENZIE J.

Judgment delivered 9 July 1999
CATCHWORDS: DAMAGES - Negligence - Whether information provided by the defendant's agents misled the plaintiff and resulted in economic loss - Whether the plaintiff complied with the requirements for obtaining a pharmaceutical approval number - tentative approval number - assessment of damages.

Counsel: Mr L Bowden for the plaintiff
Mr G Gibson QC with him Miss E Ford for the first second and fourth defendants

Solicitors:Boyce Garrick for the plaintiff
The Australian Government Solicitor for the first second and fourth defendants

Hearing Date: 10 May 1999 - 19 May 1999

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No.2045 of 1995
Before the Hon. Mr Justice Mackenzie
[re McWilliam v HIC & Ors]
BETWEEN:

GEOFFREY DAVID McWILLIAM
First Plaintiff
AND:
MARGARET ANN McWILLIAM
Second Plaintiff

AND:
  HEALTH INSURANCE COMMISSIONER
  First Defendant
AND:
  AUSTRALIAN COMMUNITY PHARMACY
  AUTHORITY
  Second Defendant
AND:
  COMMONWEALTH OF AUSTRALIA
  Third Defendant
AND:  R CANDY and THE SECRETARY, HEALTH
  INSURANCE COMMISSION
  Fourth Defendant
JUDGMENT - MACKENZIE J.

Judgment delivered 9 July 1999

The action concerns claims for damages for negligence. By the time of the trial, the second plaintiff's action was discontinued and the first plaintiff ("the plaintiff") had discontinued his action against the third defendant. At the end of the hearing, it was conceded that the action should be dismissed as against the second and fourth defendants. Judgment was sought only against the first defendant.
The allegation is that the plaintiff had dealings with officers of the Health Insurance Commission, ("HIC") in connection with an approval to open a new pharmacy in Maryborough, extending over several years. He alleges that he was led to believe by information supplied to him by those officers that his application had been approved and that in reliance on that information he acted in ways which have caused him economic loss.
The plaintiff was not inexperienced in business matters at the time when relevant events occurred. He had owned and run pharmacies in the past and managed them for others. From about 1982 to 1987, he ran a business called Fraser Island Top Tours. He became involved in that business after he learned that the permit system to operate tours on Fraser Island would be closed off or restricted. He applied for permits and was successful. Soon after, the issue of permits was restricted. He leased vehicles and the business began to operate. He was persuaded to enter into an arrangement with another man who together with the plaintiff and his wife each held one share in a company. Disputes broke out over the liability of the other man to contribute funds and eventually that person commenced legal proceedings against the plaintiff. The proceedings were finally resolved only in August 1992. The plaintiff obtained judgment against the other man for about $80,000, interest and costs but recovered nothing since the man became bankrupt. The business was sold in November 1987 after which the plaintiff continued to work as a manager pharmacist, as he had done for the preceding two years in addition to being involved in the tour business.
The case for the plaintiff was that he had suffered economic loss as a result of receiving negligent advice or information from servants or agents of the HIC. It was submitted that there were four potential ways in which the plaintiff might succeed. They were the following:
1.A cause of action arising in May 1990 when the plaintiff refused an offer by Mr Clark of a partnership in an existing pharmacy because he believed, in reliance on express or implied advice or information given to him by the HIC from October 1989 onwards that he had a valid approval to dispense pharmaceutical benefits from premises anywhere in Walker or Pallas Streets, Maryborough.
2.A cause of action arising when in about June 1992 he rejected a second offer from Mr Clarke on the basis of that advice.
3.A cause of action arising in or about November 1993 when he failed to make any attempt to acquire the totality of Mr Clark's business when it came on the market, on the basis of such advice.
4.A cause of action arising from about July or August 1994 when the plaintiff commenced to incur direct expenses in reliance on, firstly a series of oral advices from Ms Stewart and Mr Candy in March, April and May 1994, and then in reliance on a letter dated 22 August 1994 written by Mr Turk.
Relevant events began on 24 October 1989 when, having heard rumours that a policy of rationalisation of pharmacies was to be implemented, the plaintiff wrote to the HIC applying for approval to supply pharmaceutical products in premises in "Walker/Pallas Streets, Maryborough". This application had been preceded, in August 1989, by an application for approval to supply pharmaceutical benefits from premises in Hervey Bay, in respect of which an approval No.5553G was issued. On 27 October 1989 a telephone conversation occurred between him and Mr Croft of the HIC as a result of which forms to make a formal application were sent. The plaintiff was advised by means of a "with compliments" slip that the application form had to be filled in. The plaintiff filled in the application form in respect of "Walker/Pallas Streets" on 1 November 1989. An approval number, 5076E, was issued, and notified in a phone call by Ms Todd of the HIC to the plaintiff, according to the evidence, on 3 November 1989.
Throughout 1990 and on one occasion in January, 1991 inquiries were made by Ms Todd about progress towards opening in Maryborough. There is a note that she telephoned him on 4 December 1990, when he said he was still going ahead with the pharmacy, but had had problems about building and was hoping to open in mid-January.
On 31 January 1991, Ms Todd requested more information. The letter requested a bank statement and evidence of contractual arrangements that had been entered into prior 8 August 1990. The letter referred to premises at "cnr. Walker/Pallas Streets". The plaintiff said he did not notice this as he was concentrating on the request for information.
On 5 February 1991 the plaintiff wrote confirming his intention to open the "approved pharmacy in Maryborough". He explained the delay in doing so was due to a legal dispute over the previous business which had delayed the securing of freehold premises at the nominated site. He said there were leasehold premises nearby which could be available if necessary as an interim measure. This letter apparently crossed in the mail with Ms Todd's letter of 31 January 1991, since the plaintiff wrote on 8 February 1991 to the HIC in the following terms:
"I am a little confused by this correspondence which seems to relate to persons now seeking approval under new guidelines. I contacted the Commission on several occasions last year when the new legislation was being mooted and after it came into effect to confirm my existing approvals still stood. I was assured it did and these new guidelines only applied to persons who had not yet received an approval.
Significantly I have had no communication from the Commission in any way to indicate my existing approval has been cancelled."
On 12 February 1991 Ms Todd phoned him. The note reads in part "He is going to send further info for the PRA re para 3(g). Explained about tentative approval that cannot dispense until fully approved". The reference to para 3(g) is to a Ministerial Determination concerning applications for approval to supply pharmaceutical benefits dated 9 January 1991. At that time para 3(g) was the most favourable clause in the determination from the point of view of pharmacists although it was less favourable than had been expected. An internal HIC memorandum dated 13 February 1991 succinctly puts the difficulty in the following terms:
"The difficulty here is that the Government/Guild Agreement allowed for pre 9/8/90 applications to receive special consideration but the formal legal, and binding, guidelines did not."
On 13 February 1991 the plaintiff sent a fax to Mr Andrew Greenwood of Morris Fletcher & Cross who was acting for him in the civil action referred to above. The fax included the following:
Please note I was granted an approval (no.5553G) by the HIC last year. It is only now that they seem to interpret this as a provisional approval and seem to request I reapply for full approval.
I suspect their motives in this.
They certainly seem to be restricting new openings as much as possible along with Federal Govt policy."
At that time he was patently aware that the HIC did not accept that he had an unqualified approval. Mr Greenwood, although he was not formally acting in connection with this matter, wrote to the HIC in Brisbane and the Pharmacy Restructuring Authority ("PRA") in Canberra asserting that the plaintiff held an existing approval. (The PRA was not the approving authority but its recommendation was a prerequisite to approval. The approval had to be given by the Delegate of the Secretary of the Health Department under s 90 of The National Health Act. That position was held by Mr Green, Government Programs Manager of the HIC, at the time the decision to refuse the application was eventually made.) The other notable feature of the letter is that it refers to the "application for approval for a new pharmacy at cnr. Walker & Pallas Streets, Maryborough". It is plain enough that Mr Greenwood copied the description of the premises from the HIC letter. Copies of those letters were sent to the plaintiff the same day. The plaintiff gave evidence that he did not recall seeing the letters. There is no reason to believe that they did not arrive at his address.
I had an extensive opportunity to observe the plaintiff during the course of his evidence. I do not accept that he was a person who would overlook detail as to the address in the separate letters from the HIC and Morris Fletcher & Cross, referring to the corner of Walker and Pallas Streets.
In any event on 28 March 1991, Mr Dawson wrote on behalf of the HIC from Canberra advising that the application had been considered by the PRA and that further consideration had been deferred. He advised the plaintiff that the PRA was concerned that he may not have established a sufficient commitment to proceed with a pharmacy at the proposed location prior to 9 August 1990. He went on to state that the points of particular concern were the vagueness of the address of the proposed pharmacy ("Walker/Pallas Sts") which could mean any one of four corners, and whether indeed there were any premises at the location at that time. He advised the plaintiff that the PRA sought from him the specific street address of the proposed pharmacy, whether or not premises were available at that address prior to 9 August 1990 (i.e. that they existed and were not otherwise occupied), a photograph of the premises, and an affidavit from his solicitor attesting to those matters along with the binding nature of his financial commitment to the premises prior to 9 August 1990. Those requirements extract the essence of para 3(g) of the Determination. The applicant never responded to this letter directly.
On 29 May 1991 a fresh Determination was made by the Minister. This added a new para 3(h), which provided that approval of a pharmacist in respect of particular premises should be recommended where the application or approval of the pharmacist in respect of those premises was made prior to 9 August 1990. On 1 July 1991 Mr Candy, Secretary of the PRA, wrote to the HIC saying that it had recommended approval of the application in respect of premises located at corner Walker and Pallas Streets, Maryborough.
On 5 July 1991 the plaintiff was phoned by Ms Harrison of the HIC. Her file note is as follows:
"Phoned and advised Geoff McWilliam approvals has been passed. He will let me know when he intends to start using". (sic)
It appears that a different number, (8541M), was assigned in respect of the application. For some time after that the only apparent activity appears to be phone calls in which the plaintiff attributed his inability to open the pharmacy to the ongoing civil proceedings.
On 8 July 1992, following adverse comment from the Senate Inquiry into Pharmacy Restructuring and the PRA about issuing tentative approval numbers, a letter was written to the plaintiff stating that the HIC was reviewing tentative approval numbers which had issued to date. It said that unless he was able to demonstrate that his pharmacy would commence trading within 4 weeks the tentative approval number previously issued would be withdrawn. The letter continued "This will in no way affect the PRA's recommendation in respect of the proposed premises and a new approval number will be allocated to you when your application is approved by the delegate in accordance with current policy." He was given until 17 July 1992 to advise of a planned commencement of trading within the next 4 weeks or the tentative approval number would be withdrawn. That letter was in connection with "tentative approval number (8541M)". On the same day a letter was sent advising that "tentative approval number (5076E)" was withdrawn immediately. Once again the plaintiff did not respond and it was noted in the HIC file on 23 July 1992 that there had been no response and therefore the numbers were abandoned.
At about this time, both the PRA and the HIC published newsletters in which reference was made to cessation of the practice of issuing tentative approval numbers. More importantly, they also said that a reason for doing so was that there had been misapprehensions on the part of pharmacists that the issue of a tentative approval number provided them with some rights under the National Health Act. The plaintiff agreed that he had seen these newsletters. I should say that I do not consider that misapprehension on the part of pharmacists about the effect of a tentative approval is necessarily of itself evidence of negligence by the HIC.
Nothing of significance happened until 28 March 1994. A file note records that the plaintiff contacted Ms Stewart about an application to open a new pharmacy. The note goes on to state that the plaintiff also mentioned that he had been given an approval number some time ago "but that has probably fallen by the wayside". Ms Stewart said the quote recorded the plaintiff's exact words. She discussed the plaintiff's application with the branch manager, who felt there was no problem giving approval provided a more specific address was advised. She also checked with Mr Candy and found that there was no time limit. He also suggested that a specific address be obtained. There is also a file note to the effect that should the address of the premises be different there was no possibility of opening elsewhere. The pharmacy must start operations at the notified address. She tried to contact the plaintiff but could only leave a message.
On 29 March 1994 the plaintiff's wife contacted Ms Stewart. The same day a letter was written to the plaintiff referring to the PRA recommendation for premises located at corner Walker and Pallas Street, Maryborough and requesting the specific address of the premises (i.e. shop and/or street number).
On 7 April 1994 the plaintiff contacted Ms Stewart regarding that letter and advised that the premises were still available. He also enquired about opening a new pharmacy in the Howard area. He said that if the Howard exercise was not an option he would probably proceed with opening the Maryborough pharmacy, even though it was an expensive property. The note continues "I stressed to him on several occasions that he must open the pharmacy at the premises subject of the recommendation or the pharmacy would not be an approved pharmacy. He said he realised this".
On 16 April 1994 he wrote saying that the premises he originally intended to occupy for the purposes of trading as a pharmacy in Maryborough were still available and he was currently negotiating purchase of them. He wrote "the street address is 135 Walker Street, Maryborough Q". Once again he did not say that the premises were not on the corner of Walker and Pallas Streets. After that there was intermittent contact in which information was sought about a starting date.
On 3 August 1994 an officer of the Maryborough City Council spoke to Ms Stewart and Mr Binnington of the HIC about guidelines for approval of pharmacies since an application for re-zoning in connection with the proposed pharmacy had been made. For the first time the HIC was made aware that the premises were not on the corner of Walker and Pallas Streets, and that there was a considerable distance between them and that intersection.
On 11 August 1994 Mr Binnington spoke to the plaintiff's wife about the discrepancy in the address. She advised that the original application meant a location "somewhere in the vicinity of the cnr. Walker and Pallas Streets". Later the same day the plaintiff rang concerning that conversation. The note records him saying that the reason for the original application showing Walker/Pallas Streets was that he did not want another pharmacist to be aware of the intended location. It was suggested that he prepare a letter detailing the various aspects and it would be sent to the PRA for consideration. On 11 August 1994 the plaintiff wrote to Mr Binnington expressing "utter dismay" about the issue concerning the address of the premises. He referred to the letter of 16 April 1994 and suggested that it was the HIC's fault that it had not realised that the premises were not on the corner of Walker and Pallas Streets.
Another letter of the 11 August 1994 was also written to Mr Binnington with a similar but not identical letter going to Mr Turk at the HIC in Canberra. A degree of informativeness which had previously been missing appears in the letters. The plaintiff said in 1989 he wrote to the HIC expressing his desire to open a pharmacy "in Maryborough in Walker Street off Pallas Street". He said that from his previous experiences he was loath to divulge the exact street address as such information had a habit of leaking out. He asserted that he still possessed approval no.5076E (which is contrary to the letter of 8 July 1992 and his phone call to Ms Stewart of 28 March 1994). He conceded that he had received correspondence from the HIC stating his given address was "vague". It is reasonable to assume that this relates to the letter of 28 March 1991. He asserted that on 16 April 1994 he provided the exact address of the premises concerned. He said that there had never been any other premises in contention as none other existed in the area which could have possibly been utilised for the purpose. He said he had never given an actual street address previously for the reasons given and that there had certainly been no change or moving of the proposed pharmacy location. He denied that he had changed or moved the location of his proposal. He reiterated that the intended location had always been 135 Walker Street, Maryborough. He said that the property had been on the market for many years and his only concern was that a potential competitor could undermine his proposal by purchasing it.
In the letter to Mr Turk, he said that in his application he had informed the "general locality as being in Walker Street off Pallas Street which I expressed as Walker Street/Pallas Street". He said he was mindful of not divulging the exact street address at that point in time for reasons he had explained in another letter. He said that at a later date the HIC wrote to him stating his location was "vague", a point with which he totally concurred. He went on:
"I had every intention of being more specific at the appropriate time. ... I suspected and it has now been proved, that supposedly confidential information of the HIC can leak out to potential competitors or opponents to my plans".

That correspondence is a clear concession that he was aware, from at least the end of March 1991, that the HIC wanted an exact address and that for his own reasons he would not give them that information. Indeed, until almost the end of the period, he had no premises he could use to open the pharmacy. All of that discussion became fairly pointless since on 22 August 1994, Mr Turk, Manager of the Pharmaceutical Program Branch of the HIC, wrote stating that "provided you move into 135 Walker Street, Maryborough, approval will be granted under the National Health Act."
The HIC concedes liability for any loss from that point onwards since on 2 March 1995 the Delegate took the view that the site at 135 Walker Street, being approximately 180 metres from the corner of Walker and Pallas Streets, was not in accordance with the PRA recommendation in respect of premises situated at the corner of Walker and Pallas Streets. The plaintiff took the matter to the Administrative Appeals Tribunal where it was held that the application was not in respect of particular premises within the meaning of the Determination. There is no reason to doubt the correctness of that conclusion. The plaintiff took the matter no further within the appellate framework and subsequently commenced the present action.
In the analysis above of the communications between the plaintiff and the officers of the HIC, there are references to file notes of the content of the conversations. There is no reason to doubt that the matters referred to in the notes, which were contemporaneous or nearly contemporaneous with the conversations, were discussed, and I accept that they were.
The first basis upon which liability was argued was that on or about 27 October 1989 the HIC, acting by its servants or agents orally advised and informed the plaintiff that the application had been received and that a further application form would be sent "and thereby impliedly advised the ... plaintiff that it was legally competent to apply for approval in respect of premises 'in Walker/Pallas Streets'." It was also alleged that by Mr Croft's sending of the form and by the terms of the "with compliments" slip, the HIC advised or informed the plaintiff:
(a)expressly that Mr Croft would issue an approval number when the form was filled in and received by the HIC;
(b)impliedly that the application was made validly;
(c)impliedly that it was legally competent to apply for approval in respect of premises "in Walker/Pallas Streets";
(d)expressly that the application would be granted; and
(e)impliedly that the approval related to premises anywhere in Walker Street or Pallas Streets, Maryborough.
It was further alleged that on or about 3 November 1989 the HIC acting through Ms Todd or Mr Croft informed the plaintiff that:
(a)that the application was made validly;
(b)it was legally competent to apply for approval in respect of premises at Walker/Pallas Streets;
(c)the application had been granted;
(d)the approval related to anywhere in Walker Street or Pallas Street, Maryborough; and
(e)the approval number was 5076E.
It was further alleged that on or about 3 November 1989 documents styled "authority for authorised person to sign claim forms" was sent by Ms Todd or Mr Croft. It was alleged that by the terms of that document the HIC advised or informed the plaintiff:
(a)the application was made validly;
(b)the approval number was 5076E;
(c)it was legally competent to apply for approval in respect of premises in Walker/Pallas Streets;
(d)the application had been granted; and
(e)the approval related to anywhere in Walker Street or Pallas Street, Maryborough.
It was further alleged that during the period from early 1990 until approximately May or June 1990 the HIC advised or informed the plaintiff of the same matters. It was alleged that this advice was given orally by Ms Todd and/or Ms Stewart. (It was conceded that the reference to Ms Stewart was not correct since she did not become involved in the matter until later.) It was alleged that the plaintiff reasonably understood the advices set out above to mean:
(a)that the first plaintiff had validly made application for approval of premises in all respects in accordance with the National Health Act 1953; and
(b)that approval had been granted to the plaintiff to establish a pharmacy in either Walker Street or Pallas Street, Maryborough, in the vicinity of the intersection of those two streets and that approval was thereby granted in respect of 135 Walker Street, Maryborough, which was so located.
It was alleged that the advice was given negligently in that:
(a)the HIC intended only to approve premises at the corner of Walker Street and Pallas Street, and failed to convey that fact to the plaintiff;
(b)the approval was only tentative which was not explained to the plaintiff;
(c)the defendant negligently failed to properly consider the provisions of the National Health Act 1953; (this particular did not feature in the arguments addressed to me);
(d)the defendant negligently failed to advise or inform the plaintiff that there was a doubt as to the validity of the application;
(e)the person who issued the approval number was not a Delegate of the Secretary and had no power to grant approval; and
(f)the approval number was issued by a person who had no intention of granting such approval and failed to communicate that fact to the plaintiff; (neither (e) nor (f) was argued before me either).
It is convenient at this point to mention that Mr Gibson cross-examined the plaintiff about the date upon which he was approached by Mr Clark about possibly entering into partnership since the initial statement of claim and a subsequent one alleged that it occurred in about August 1990, whereas in the final amended statement of claim delivered on 8 October 1998 it was said to have occurred in May or June 1990. The plaintiff and his wife both gave evidence that it had happened in May 1990. Mr Clark was unable to say when he had the conversation. The plaintiff said that the date of August 1990 had presumably got into the pleading because he had been initially asked if the conversation had happened before August 1990, which he confirmed. He said that he had raised the reference to August 1990 in the statement of claim with his legal advisers and it was only in the final version that the date was changed to May or June 1990. While the evidence is not satisfactory as to when the conversation occurred, I am not prepared to find that it did not happen as early as May 1990.
It is also convenient to observe that the conversation described as an offer of a partnership fell somewhat short of that in legal terms. I am satisfied that Mr Clark did sound out the plaintiff about the possibility of a partnership but it is quite apparent from Mr Clark's evidence that in his mind there were a number of matters, including the notion of converting the pharmacy into a Day & Night Pharmacy, which needed to be discussed in some detail before any finality about a partnership would have been arrived at.
The plaintiff's evidence rather suggested that he was not inclined to work longer hours than he had been working as a manager. However, his point is that he did not follow up the matter any further because he believed that he had an approval to open his own pharmacy and it is in that context that the initial question, namely whether there was any negligence on the part of the HIC in causing him to so believe, is the fundamental issue.
The evidence of the plaintiff is that by the time he applied for approval for a pharmacy in Maryborough, he had received the letter concerning the premises in Hervey Bay. He had asserted in his letter of 24 October 1989 that he had approval in respect of Hervey Bay and that nobody from the HIC sought to contradict that assertion either by saying that it was a mere tentative approval or that there could be no approval in respect of premises in parallel streets, which was the case with the Hervey Bay premises. There is no evidence that the last mentioned matter was ever made plain to the HIC. Having sent the letter he received a phone call, he thought from Ms Todd, on 27 October 1989 in which she advised him the forms to complete would be sent to him. He said that nothing was communicated to him that he could not make an application of the nature he had foreshadowed. He believed that it was left on the basis that as a matter of formality the final application form would have to be filled in. When the application forms arrived with the "with compliments" slip he filled them out, writing the words "Walker/Pallas Streets" consistent with his intention to open in either of those streets.
On 3 November 1989 he received a phone call from an officer of the HIC advising that the approval number was 5076E, which he wrote on the "with compliments" slip. He said that he interpreted the "with compliments" slip as saying, amongst other things, that an approval number would be issued by Mr Croft and that it "really expressly said that the application would be granted". He said that he understood it to imply that the application was made validly, that it was legally competent to apply for approval in respect of premises in Walker/Pallas Streets, that the approval related to premises anywhere in those streets and that Mr Croft had authority to issue approval numbers and grant approvals. He said that he received no advice from the HIC officers that some other person would be further involved in the approval process. He said that the receipt of the "authority to sign claim forms" document and the document for direct deposits of payments of claims, which had approval number 5076E on them did not indicate that the number was tentative. He took those documents to mean that his application was valid, that he had been given an approval number and that the approval number related to anywhere in Walker or Pallas Streets.
He said that in late 1989 he was contacted by an officer of the HIC concerning the expected opening date of the pharmacy. He asked whether any further information was needed and was told that it was not. He was told only that the forms sent to him would have to be sent back signed before he opened. He said that in about April 1990 he received a similar phone call, he again sought confirmation as to whether any further information was required and was told that he need only provide the appropriate information about compliance with State and Local Government requirements prior to opening. He said that the next event of significance was the conversation with Mr Clark, after which he says he rang the HIC "just to make sure that (his) application was in order". He said that he made a general inquiry as to "how (his) application was going". He says he was told, in his opinion rather emphatically, that he had been granted an approval that there was no time limit on exercising the rights under the approval, and that the approval could not be withdrawn without his request or concurrence.
He says he was further told that the only thing he had to do was to complete the forms and give evidence of compliance with Local and State Government Regulations. He said he was not asked anything about the address and was not told whether or not he would have to give a specific address prior to opening. He said that he understood this conversation to mean that he did have an approval, that the approval was irrevocable and that he could open the pharmacy anywhere in Walker or Pallas Streets. In short he understood that the application was made validly. He said that he had then gone back to Mr Clark and declined his offer.
In his examination-in-chief he said that up until May 1990, there had been no suggestion that the approval was tentative. He said that in his mind it was quite the opposite in that the officers were "most emphatic" about the point. He said that he had withdrawn the application for Hervey Bay on the basis of "an absolute assurance" that his application for Maryborough was in order.
One of the particulars of negligence relied on is that advice was given negligently because the HIC officers failed to convey to the plaintiff that it intended to approve only premises at the corner of Walker Streets a Pallas Streets. With regard to this, I am satisfied that the plaintiff deliberately employed the description Walker/Pallas Streets so that he might preserve maximum flexibility as to where he could locate the premises. I am also satisfied that it was reasonable for the HIC to interpret the application as referring to the corner of Walker and Pallas Streets. I am also satisfied that the plaintiff's aim in using the expression Walker/Pallas Streets was to conceal from the HIC the precise location of the premises for as long as possible, preferably until it suited him to actually acquire the premises for the purpose of opening the pharmacy at a time of his choosing. I am satisfied that where the form refers to the necessity for the application to be made in respect of each premises at which the applicant carries on the business of a pharmacist immediately under the heading of the form and the application, on its face, is to be made "in respect of premises situated at" a place, it is improbable that a person reading the form as a whole would interpret the address written by the plaintiff as referring to any premises the applicant chose to subsequently nominate, either anywhere in Walker or Pallas Streets or in Walker Street near or off Pallas Street. Those variants have been used by the plaintiff to describe what he intended. The variability of the claimed meaning of the phrase as circumstances warranted it from time to time can be seen in the pleadings, the evidence here and the AAT proceedings.
In my view it did not fall short of the proper standard of care to fail to detect that the applicant had used a deliberately ambiguous description, or to fail to convey to him that the description on the form was inadequate. If one looks strictly at the pleading there is no evidence that up to May 1990 the HIC had formed any intent about the location to which the approval would apply. However that is only subsidiary to the main point.
The same outcome applies to the allegation that the HIC had negligently failed to advise the plaintiff there was a doubt as to the validity of his application. It was reasonable for the HIC to interpret the application as it did. It was not negligent in the respect alleged.
With respect to the allegation that it was negligent for the HIC not to have notified the plaintiff that the approval was tentative only, there is an issue of fact as to whether he was not so notified. At the time the application was made in October 1989, he had received written certificates of approval in respect of earlier pharmacies. He was aware of rumours that restrictions for the purpose of rationalising pharmacies were to be implemented. He was expressly concerned to have his application dealt with under the existing rules. As the then existing practice was explained by Ms Todd, it was that applications had to be in respect of specific premises. However, most applications were quite straight forward and simply nominated the premises from which it was intended pharmaceutical benefits would be supplied. Once a pharmacist had nominated his premises and obtained State and Local Government approval to operate a pharmacy from the nominated premises no other criteria had to be satisfied and approval was generally automatically forthcoming. The practice existed of advising pharmacists applying for approval of a tentative approval number. The number was the approval number that would be given to the pharmacist if his application was approved. It was given in advance to allow printing of stationery, prescription books and the like before the pharmacist actually commenced business. Ms Todd believed that it was common knowledge that the approval number given upon initial contact with the HIC was the tentative approval number and was not the actual approval.
It was the practice of the HIC to send a certificate of approval when it was granted by the Delegate. She also said, and maintained in cross-examination, that it was her invariable practice to inform pharmacists that what she was giving them was only a tentative approval number and that approval had not actually been given to them. If she had spoken to the plaintiff she would have informed him that it was a tentative approval number only and that he did not have actual approval to set up a pharmacy. She had no specific recollection of any relevant conversation with the plaintiff. She specifically denied informing the plaintiff that his application had been granted on the basis that she had never advised any applicant for approval that the application had been approved until such time as the Delegate had actually granted approval. She said that if she had spoken to the plaintiff she would have employed her invariable practice of advising that the approval number was only a tentative one.
Mr Croft gave similar evidence as to the practice. He added that the procedure was generally that an application by letter or phone call was not sufficient and an application had to be lodged in the proper approved form. Forms of authority for an authorised person to sign claim forms and for details for direct deposits of payments had to be lodged as well as a form stating that the pharmacist had complied with State and Local Government laws and regulations relating to pharmacies. He confirmed that a number would be allocated from a list of available numbers once an application was received. This was referred to as a tentative approval number, although there was in fact no approval, tentative or otherwise, at that time. After it was given to the pharmacist, telephone checks would be made with him or her to see when the pharmacy would actually be ready to open. Once it was ready to open, if all the documentation was with the HIC it would be given to the Delegate who would approve or disapprove the application although, as Mr Croft said, he could not recall any being disapproved. Once approval had been given by the Delegate a letter and a certificate of approval were sent to the pharmacist. It had been drilled into him that he should always inform a pharmacist upon giving him the tentative approval number that the number was tentative only, that he was not actually approved and that before being able to dispense pharmaceuticals under the Pharmaceutical Benefits Scheme he had to wait until approval had been given and he would be notified in writing when that happened. He said he adopted that invariable practice when talking to pharmacists by phone. He specifically denied informing the plaintiff that his application had been granted.
While it falls some time outside the period presently under consideration the chain of events commencing on 12 February 1990, and resulting in the plaintiff's fax to Mr Greenwood being sent on 13 February 1990 requires consideration. The file note of 12 February 1990 suggests that something was said in the conversation which led Ms Todd to bring the tentative nature of the approval home to the plaintiff on 12 February 1990. However, the fax is inconsistent with the plaintiff's evidence that in that conversation Ms Todd had allayed his fears by saying he did not have to reapply.
The conclusion to be drawn from these two events is that it was probable that up to that point the plaintiff was convinced that his application was subject to the pre-existing procedure where final approval was virtually a formality if State and Local Government requirements were complied with. However, proof of that standing alone is insufficient to establish that the HIC was negligent.

Despite the plaintiff's evidence suggesting the notion of tentative approval came into existence as part of the rationalisation procedures, I am satisfied that the concept pre-dated the rationalisation announcement.
Having regard to the evidence, I am satisfied that it is probable that the plaintiff was told verbally in about the end of October or early November that the number was tentative until approval was given upon Local Government and State requirements being satisfied and the shop being opened. If the plaintiff assumed from then until May 1990 that his application would be approved if he chose to comply with Local Government and State requirements and opened the shop, such belief was not due to negligence on the part of the HIC.
It cannot be overlooked that at the time these events were occurring the plaintiff was experienced as both a self-employed and managerial pharmacist. I do not accept that he was naive as to the process by which approval was gained under the pre-rationalisation procedures. He had been through the approval process before. The view that he is not naive was reinforced by the opportunity to observe him giving evidence over a lengthy period.
It follows from what has been said that the HIC is not liable in negligence for any consequences of the plaintiff's deciding not to pursue the question of a partnership with Mr Clark in May 1990.
The second alleged basis of liability is that because of information and advice given to the plaintiff by officers of the HIC he refrained from further exploring the possibility of a partnership with Mr Clark in about June 1992. The date of the actual conversation, which was little more than an enquiry whether he had given any further thought to a partnership, is vague. The most precisely it is defined in the evidence is that it occurred some time before the two letters dated 8 July 1992 from Mr Green of the HIC were received.
The relevant events during the period between the first reference by Mr Clark to the possibility of a partnership and the second occasion are set out above. In summary by that time the indications were plain that the HIC had interpreted application as relating to premises at the corner of Walker and Pallas Streets. There had been a specific expression of concern on the part of the HIC about the vagueness of the address. That enquiry was addressed in terms which could only have led the plaintiff to believe that the HIC was acting under a misapprehension as to the proposed location of the pharmacy. He had taken no steps to address either the HIC's concerns in the letter or the obvious misapprehension.
More importantly for his case, the telephone conversation between Ms Harrison and the plaintiff on 5 July 1991 had occurred. According to the plaintiff the conversation was very brief because he was in the pharmacy at which he was then working in the vicinity of other employees and felt constrained about speaking in detail. Ms Harrison has no specific recollection of the conversation but accepts that one occurred. She was, she says, aware that the approval process had not been completed at that time. Only a recommendation had been made. She said that at the time of the phone call there was a practice of advising pharmacists of the tentative approval number upon the PRA recommending approval of the application. The fact that a new number was allocated at this time is consistent with this. She said that in considering the file note she believes that she used the word "approvals" as a shorthand expression in the note itself for stating that the PRA had recommended his application. She said that she did not believe that she would have told the plaintiff that his application had been finally approved. The practice upon final approval was for a certificate of approval to be prepared, signed and sent to the pharmacist. She said she would never have informed the plaintiff that his application had actually been approved without sighting the certificate of approval or other documentation showing that the Secretary's Delegate had granted the approval.
She also said that she was confident that if she advised the plaintiff of the new number she told him that it was a tentative approval only. She said that it was a matter of which HIC staff were extremely conscious that pharmacists should be told that the number given was only a tentative approval number until such time as actual approval had been given by the Secretary's Delegate. She said that the second part of the note referred to the need for a person to let the HIC know when he was in a position to commence operating the pharmacy. Once the PRA had recommended approval it was almost automatic that the Secretary's Delegate would grant approval. She said that she had had a conversation on 3 January 1992, in which he said that opening of the pharmacy was being hampered by drawn out legal proceedings.
She gave evidence that her phone call was prompted by the letter from Mr Candy of the PRA dated 1 July 1991, which states that the plaintiff's application in respect of premises located at corner Walker and Pallas Streets, Maryborough had been considered by the PRA and it had recommended approval of the application on the ground that guideline 3(h) (application made prior to 9 August 1990) had been met.
The plaintiff was extensively cross-examined about the conversation. He denied that he had been told only that the application had been recommended. The relevant passage is as follows:
"... with respect to the conversation which subsequently took place with Patricia Harrison on - there is a note at page 22 of the A documents, that is another conversation to which you - on which you rely saying that you had been informed that the approval had been granted?-- "Passed" was the word, yes.
.............
Yes. And that you were informed to the effect that the approval had been recommended?-- Absolutely not.
Absolutely not. That means that eight years after the event or almost eight years after the event you completely recall the content of this conversation notwithstanding you don't have a note of it; is that correct?-- That conversation to me was the most profound conversation in the whole episode as far as - as I tried to explain to you before, I don't think you wished to hear, that letter of Mr Dawson's was a letter clearly stating there was some confusion about it could have been different corners.
What letter are you referring to?-- In the prior letter to this phone conversation, it was the previous - it was the only previous communication.
Yes?-- Was in 28 March ' 91.
Yes?-- At the time we were in the middle of the trial doing a lot of work. I intended responding. When this came although, this conversation was so - I won't say inconsistent, but it was so dramatic that I was taken aback by it and I distinctly remember the phone conversations, she said - don't quote me, I won't say she congratulated me - she said, "Mr McWilliam, you will be pleased to know your approval has been passed". She is a Health Insurance Commission person. I assumed that it had been through the whole approvals process. Because she said, you know, "Let us know when you are going to start using it." Now, you can't use a recommendation for the PRA and you can't use an application. You can only use an approval. I mean, it was clear-cut and there was never another phone call. They used to ring me regularly. Suddenly, no more phone calls, there is no more contention, the issue is resolved."
In evidence-in-chief he had been asked about his state of mind at the end of 1993, about the status of his application. He replied in the following way:
"And what was that - what was your subjective appreciation - your state of mind about it?-- I was still relying on the phone call from the lady in '91 who was quite - just adamant about it. Previous to that I used to get occasional calls from them saying, 'When are you going to open?', and that. That one resolved it and they never bothered to ring me again because it was, in my mind, the end of the matter.
In what premises in your mind did the approval relate to?-- I still believed my application was the overriding issue and that was by my intention for either Walker or Pallas Street."
He had also been asked about his knowledge of the concept of a tentative approval. He answered in the following way:
"MR BOWDEN: ............... Mr McWilliam, prior to May 1990, that is two years previously, have you ever heard of what is called a tentative approval number?-- No, I didn't.
When did you first hear of it?-- Detaining it narrowly as the number in that sense it would have been Mr Green's letters. I had discussions that there was some tentative nature scenarios regarding waiting for your State approval previously but they weren't as succinct as saying they were a tentative number. It was more the scenario was tentative waiting on those approvals. Now they say it was the number waiting on that that was tentative waiting for those State Government approvals."
I have no doubt that subjectively Ms Harrison did not consider that she was telling the plaintiff that his application had been finally approved. I am also satisfied that the plaintiff does not recall the precise words but was speaking as to the impression he says he got from the phone call.
He was also asked about his appreciation that the HIC was acting under a misapprehension as to the proposed location of the pharmacy, as demonstrated by the letter of 28 March 1991 from Mr Dawson to him. He gave the following answer in that connection:
"A couple of months later I received this phone call saying it is all approved, your application, and they said that, 'Your application has been approved', the Commission. 'Tell us when you are going to start using it.' In the face of that one would hardly go and resurrect confusion, if you like, if it has been resolved, in my mind."
The underlying theme of his evidence concerning the address of the premises was that, irrespective of what the application might reasonably be understood to be saying the proposed address was, he knew what he meant, and that differed from the HIC's interpretation. He considered that it was an unimportant discrepancy which in the fullness of time, when he finally decided to tell the HIC of its error, would be resolved by the HIC accepting that his interpretation was in accordance with his application and that the problem would disappear.
In my opinion he had no reason to suppose from the combination of the previous correspondence and the conversation with Ms Harrison that the approval did not relate specifically to the corner of Walker and Pallas Streets. In my opinion it is implicit in the last passage quoted above that he knew that there was confusion about the address on the part of the HIC and having not drawn it to its attention despite Mr Dawson's request for clarification, he was prepared to act on the assumption that the problem had somehow gone away and was not inclined to resurrect the issue in case he was wrong and complications ensued. This and his willingness to rely on a very brief conversation with Ms Harrison as an indication that the confusion had been resolved leads me to not accept that he had a genuine belief that there had been an approval on the basis of his interpretation of the application. At the highest he was prepared to take advantage of what he says was his understanding of words spoken by Ms Harrison to support an argument that his application had been approved for a location of his choosing in the two streets while knowing that there was no reason to suppose that the HIC had acted on any other basis than that the proposal related to premises at the corner of Walker and Pallas Streets. Accordingly, I am not satisfied that the plaintiff has made out a basis of liability on the second basis claimed.
The third basis is alleged to be a cause of action arising in or about November 1993 by reason of his deciding not to attempt to acquire the totality of Mr Clark's business when it came on the market. By the time that this event occurred the plaintiff had received the letters from Mr Green dated 8 July 1992 relating to cancellation of the tentative approval numbers (both original and subsequent). He deliberately did not respond. I am also satisfied that he was aware that the approvals had been withdrawn on the basis of the conversation he had with Ms Stewart on 28 March 1994, in which he referred to the probability that the numbers had "fallen by the wayside". I am satisfied that there was no reliance on any information or advice given by the HIC in making a decision in November 1993 not to attempt to acquire Mr Clark's business.
With respect to the last basis of liability it is conceded that when the letter of 22 August 1994 was written by Mr Turk, the HIC was aware that the premises were not at the corner of Walker and Pallas Streets, and that to advise that he would be permitted to commence business at 135 Walker Street was negligent, since the stance of the Delegate was ultimately that that address did not constitute compliance with the application.
Mr Bowden's formulation of the basis of liability includes a series of oral advices from Ms Stewart and Mr Candy in March, April and May 1994 as negligent information or advice. The conversation in which the plaintiff conceded knowledge that the tentative approval numbers had probably been revoked occurred at the end of March 1994. The following day a request was made for the specific address of the premises with reference to a PRA recommendation in respect of premises located at the corner Walker and Pallas Streets.
On 7 April 1994 the plaintiff spoke to Ms Stewart but did not reveal that the premises, which he said were still available, were not so situated. I accept that Ms Stewart told him on that occasion that the pharmacy must open at the premises subject of the recommendation. The plaintiff was well aware at that point that the recommendation was for premises located at corner of Walker and Pallas Streets.
On 16 April 1994 he mentioned in writing for the first time the street address but concealed that the premises were not on the corner of Walker and Pallas Streets. It was only on 3 August 1994 that the HIC became aware of the true location of the premises. There is no tenable basis for suggesting that any information or advice was negligently given during this period.
The only remaining issue is assessment of damages in respect of the period following the admitted negligent act of advising that the premises could be opened at 135 Walker Street.
The plaintiff claims under a number of categories for losses incurred in consequence of the advice that he could open the pharmacy at 135 Walker Street. Some of these were opposed by the HIC. In some cases it was submitted that the amount claimed should be reduced to accord with the evidence. It can be said with certainty that Mr and Mrs McWilliam spent moneys which for reasons set out below are not recoverable from the HIC. While that will be a source of disappointment to them the result follows inevitably from the way in which they structured the transactions, in some cases in Mrs McWilliam's name and in other cases with a degree of informality that which failed to put into effect the arrangements which the plaintiff says were intended by him.
The premises at 135 Walker Street were bought from people named Wuertz. At the time of purchase a corner store, for want of a better description, was being conducted there. It was necessary that the premises be rezoned if the use as a pharmacy was to be a permitted use.
Mrs McWilliam entered into a contract which settled on 2 September 1994. Although the contract was subject to and conditional on the purchaser at her own expense obtaining before the date of completion consent of the local authority to the rezoning, the transaction settled while there was an air of uncertainty about the fate of the Council's decision since an appeal to the Planning and Environment Court was lodged. The appeal was subsequently withdrawn and the gazettal occurred in March 1996.
Rental
On 3 September 1994 a 10 year lease was entered into between the plaintiff and his wife under the terms of which he was obliged to pay rent of $25,000 per annum in monthly instalments to her. Trading at the premises did not begin until 6 March 1995 and ceased on 10 April 1995. In the period between the purchase of the premises and the commencement of trading various improvements were carried out.
On 26 June 1995 a payment of $6,250 - the equivalent of three months rent - was paid to the account of Mrs McWilliam. The same day a cheque for $6,000 was debited to her account. On 3 July another payment of $6,250 was made into her account. This was followed by the debiting of a cheque for $6,000 on 6 July 1995. On 10 July 1995 $4,167, being equal to two months rent, was paid into her account. A debit against her account for $4,300 was made on 12 July 1995. On 14 July 1995 one months rent of $2,084 was paid into her account.
Each of the cheques debited against her account was drawn in favour of the plaintiff. The HIC submitted that because of the close correspondence of the amounts paid in and paid out, I should regard the lease as a document not intended to create a binding legal relationship between the plaintiff and his wife.
Mrs McWilliam mentioned two factors as the reason for the lease being entered into. She said one was to give her an asset in the event that something happened to her husband, and the second was that QDL with whom financial arrangements were entered into, required a lease. She candidly conceded that she had refunded the moneys paid into her account to her husband. The reason for the ostensible payments of rent was to create a record of such payments for taxation purposes. She agreed that there were no payments of rent after 31 July 1995. She said that since that date she had not enforced the lease. It was never registered despite its term. No stamp duty had be paid. The payments of rent had not been included in her taxation return. However, she said that this was as the result of advice from her accountant to the effect that nothing more should be done in respect of her taxation affairs until the business problems had been sorted out. That, apparently, remains the position.
Having regard to what has been said I am not persuaded that the plaintiff has suffered any actual loss in connection with rental payments which he purported to make. With respect to liability for unpaid rent which, according to the lease, was due until the premises were sold, I am not satisfied that it was intended to enforce payment of arrears against him at any time during the period to trial. I am not satisfied that he would have become liable to enforced payment of any such sums in the future. Accordingly, the claim in respect of rental has not been made out.
Town Planning Approval Expenses
These are claimed at $6,628. Mrs McWilliam was the owner of the premises. Under the contract with the vendor she had the obligation to apply for rezoning. The application to the Council was made in her name. According to the form she signed the Council became her agent with respect to advertising and notice requirements concerning the application. There is no evidence of any legally binding arrangement under which the plaintiff is liable for any expenses relating to the application.
I am satisfied it cannot be treated as the plaintiff's loss.
Loss with respect to stock
This was claimed in the amount of $5,513. There were two components. One was stock purchased with the premises. The other was the net loss on stock purchased specifically for the pharmacy. The evidence was that there was a quantity of stock of a kind kept in a modest corner store in the premises which was purchased at the time the premises were purchased. The contract to purchase the premises, which was in the name of the plaintiff's wife, provided in effect that up to $3,000 worth of stock was to be purchased by her. It was agreed that the stock referred to in the contract was that in respect of which reimbursement was claimed against the HIC. Notwithstanding the terms of the contract the plaintiff said it was always his intention that he was the purchaser of the stock. He said that at some stage the stock must have passed from the vendor to his wife to him. He agreed that there was no document evidencing such a transaction.

On the state of the evidence it is not established that a loss in respect of stock purchased with the premises is the plaintiff's loss. In other respects the claim is not disputed. Damages in the sum of $2,868 are allowed under this heading.
Interest on QDL Loan
After discussions with QDL Limited (QDL) about obtaining finance for the setting up of the business, Mrs McWilliam entered into a loan agreement with QDL. Moneys were drawn down under the loan and interest became payable. The loan agreement describes the loan as $110,000 for the purpose of providing finance to the borrower for the purchase of a shop and dwelling. It was secured by a mortgage over their jointly owned residence and the shop of which she was the owner. Clause 3.2 of the agreement permitted the borrower to apply for further advances which the lender might make in its discretion. Moneys were advanced under this clause as well. They were secured by the same mortgages. The reference to two facilities is to the distinct kinds of borrowing, not to two distinct borrowers.
Notwithstanding the evidence that the additional advances were used for the purpose of the pharmacy business set up by the plaintiff they were advanced under a loan agreement under which Mrs McWilliam was the person obliged to fulfil the obligations. No acceptable evidence of any legally binding agreement between the plaintiff and Mrs McWilliam to reimburse her was proved. Regrettably, because of the form the transaction took losses as a result of entering into the loan cannot be regarded as the plaintiff's loss.
Fixtures and Fittings
A claim in this regard amounting to $14,786.43 which, after taking into account items retained or disposed of by the plaintiff after the business ceased was reduced to $12,666.43 was made. The methodology used by Mr Cooper the defendants' accountant resulted in reduction of the amount claimed for costs incurred. He deleted $1,500 attributable to the illuminated advertising sign on the basis that there was no evidence that it had been disposed of and $5,000 for shop fittings in the shop when it was purchased, on the basis that the purchase was, as the contract shows, by Mrs McWilliam. He also deleted the cost of the alarm installed at an expense of $1,013 on the basis that the work was carried out after the Delegate's decision was made. He also deleted items where he had not sighted the invoice for expenditure. He also deducted 25 per cent on the assumption that that was a figure representing the returns of selling the items. He further reduced the amount by attributing varying proportions of the cost to another business enterprise engaged in by the plaintiff, Pacific Guides.
Mr McWilliam explained that Pacific Guides was a business which he had set up to provide tourist information. In my view it is of greater relevance with regard to motor vehicle expenses to which I shall come later than to the premises. I am satisfied that the premises were primarily intended to be a pharmacy and any use of the premises with regard to Pacific Guides was insignificant. After performing his exercise Mr Cooper arrived at a sum of $5,232 which would be increased to $5,991 if the expense of the alarm were allowed. The onus is on the plaintiff to establish the level of claim. Having regard to the evidence and while it is not possible to be absolutely precise, I am satisfied that the plaintiff has established not less than $10,000 of loss under this head and I will allow that amount.
Computer Hardware and Software
These were not contested at $2,481 and $259 respectively.
Motor Vehicle Expenses
The claim under this heading was for $10,168. A vehicle was leased on 8 July 1994. In this regard there is conflicting evidence as to the extent which the vehicle was used for the purpose of the pharmacy business and for Pacific Guides. The evidence establishes some use in respect of the Pacific Guides business although, as I have said, the evidence is somewhat contradictory. Mr Cooper's methodology was to reduce the claim by allowing a proportion of business related mileage disclosed in the documentation.
There is also evidence that there was some use of a private vehicle during the period when the premises were being prepared for use as a pharmacy. Further, no claim was made for running expenses. Looking at the matter globally, a sum of $8,000 under this head is not excessive and I propose to allow that amount.
Loss of Earnings
On behalf of the plaintiff, there was a submission that allowance should be made for a "small loss of income" for a period of six months or so while he was acting under the misapprehension created by the letter of 22 August 1994 that he could open a pharmacy at 135 Walker Street.
In fact, the plaintiff had resigned from his employment in January, 1994 and had done casual work in the period up to receipt of the advice from the HIC. Any loss prior to 22 August is not recoverable. Prior to his resignation, he was paid $700 per week and some expenses although he said there was also a payment of $150 to his wife.
He commenced work again, after the refusal of his application on 2 March 1995, on 13 April 1995 at $900 per week. The evidence as to loss of income in the relevant period is meagre, although, no doubt, he suffered some loss. According to a schedule to his accountant's report, he had earned about $32,500 gross in the year ending 30 June 1993 and $27,391 in the 1994 tax year. In the 1995 tax year, he earned $20,520. Even allowing for the period when he was fully employed, it appears that he earned a significant amount in the other part of the year. In the circumstances, a precise loss cannot be quantified. Having regard to his earnings in the previous years, I will allow $8,000 for the relevant period.
Adding these items together the first defendant is liable to the plaintiff in the sum of $31,608. I give judgment for the plaintiff against the first defendant in the sum of $31,608 with costs on the appropriate Magistrates Court scale applying to a claim for that sum. The action in so far as it concerns the second and fourth defendants is dismissed with costs to be taxed.
INDEX
Page
Computer Hardware and Software................................................................................................... 31
Fixtures and Fittings.......................................................................................................................... 30
Interest on QDL Loan................................................................................................................ 29, 30
Loss of Earnings......................................................................................................................... 31, 32
Loss with respect to stock............................................................................................................... 29
Motor Vehicle Expenses................................................................................................................... 31
Rental.............................................................................................................................................. 27
Town Planning Approval Expenses................................................................................................... 28