FEDERAL COURT OF AUSTRALIA

Nyoni v Pharmacy Board of Australia [2015] FCA 196

THE COURT ORDERS THAT:

1.    The applicant pay a portion of the costs of the solicitor for the first and third respondents, and the solicitor for the second respondent, which were wasted by reason of the applicant delaying the start of the hearing. The costs are fixed in the sum of $100 in respect of the wasted costs of each solicitor.

2.    The applicant’s interlocutory application be dismissed.

3.    Costs of today’s hearing be in the cause.

4.    The matter be listed for a directions hearing at 11.00 am on 25 March 2015.

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

REASONS FOR JUDGMENT

1    By this application filed on 14 January 2015, Mr Emson Nyoni, a pharmacist, seeks interlocutory injunctive relief pursuant to an originating application which he has brought against the respondents.

2    The essence of Mr Nyoni’s primary claim is that the third respondent has published on its website misleading or deceptive information about him which is damaging to his reputation and has caused him loss because it has prevented him from obtaining employment as a pharmacist.

3    Mr Nyoni’s complaint arises from the fact that the third respondent has published on its website a list of conditions which have been imposed by the first respondent upon Mr Nyoni’s licence to practise as a pharmacist. Those conditions were imposed as a consequence of Mr Nyoni having been convicted in the Magistrates Court of Western Australia of a number of offences under the Poisons Act 1964 (WA) which related to the handling of Schedule 8 drugs in the pharmacy which he used to operate in Kellerberrin, Western Australia. Mr Nyoni takes particular exception to the publication of the first of the conditions. The first of the conditions states:

You are prohibited from taking or self administering schedule 8 drugs, save for those which may be legally prescribed for you.

4    That condition is the first in the list of a number of other conditions which the first respondent has imposed on Mr Nyoni in relation to his power to deal with Schedule 8 drugs, which conditions all form part of the same publication on the third respondent’s website to which Mr Nyoni objects.

5    Mr Nyoni’s argument is that each of the first respondent by imposing and by causing the publication of, and the third respondent by publishing, the first condition on the third respondent’s website, has engaged in misleading or deceptive conduct because the published statement implies that he is a person who is addicted to, or has been unlawfully taking or self-administering Schedule 8 drugs. Mr Nyoni says that the offences for which he was convicted were unrelated to, and could not justify the imposition of the first condition; and that the consequence of imposing, and then publishing, that condition on the internet to the world at large, but particularly to members of the medical profession and the pharmacy profession, has created a false or misleading or deceptive impression about his character and conduct.

6    Mr Nyoni contends further that by reason of the prominence of the first condition at the head of the list of other conditions, a reasonable reader of the publication on the website would get the impression that the other conditions are consequential and have been imposed because he has been found guilty of improperly or unlawfully taking or self-administering the Schedule 8 drugs or is an addicted drug taker.

7    Mr Nyoni goes on to contend that the conditions, and particularly the first condition, were imposed at the instance of the second respondent by complaints made to the first respondent which advocated or promoted the imposition of the conditions. Mr Nyoni says that imposition of the conditions, and particularly the first of the conditions, was promoted by the second respondent in bad faith because of the State’s hostile attitude to him arising from past dealings between him and the State pharmacy authorities.

8    Mr Nyoni then contends that he has applied for, but not been able to find work as a pharmacist, by reason of the respondents’ conduct.

9    In his originating application, Mr Nyoni claims damages and an injunction precluding the continued publication of the conditions on the third respondent’s website and the removal of the conditions. Mr Nyoni relies upon the extended application of Australian Consumer Law (Cth), contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth), in relation to conduct which occurs by the use of the internet, to bring his complaint in Federal jurisdiction.

10    By his application today, Mr Nyoni seeks the grant of an interlocutory injunction restraining the third respondent from continuing to publish the list of conditions on its website. Mr Nyoni has filed an affidavit in support of his originating application and also an affidavit in support of his application for interlocutory injunctive relief.

11    Mr Nyoni’s evidence does not disclose that there is an urgent need for the Court to intervene by granting an injunction pending trial. There is no evidence of any job applications made by Mr Nyoni, which are pending. Nor do Mr Nyoni’s affidavits disclose any evidence of any failed job applications which show that the reason his application failed was because the potential employer believed him to be an addicted drug taker or someone who has self-administered the Schedule 8 drugs, or was otherwise influenced by the publication of the conditions.

12    In the absence of evidence of any pending job applications which may be adversely affected by the continuing publication of the conditions on the third respondent’s website, Mr Nyoni has not shown that he will suffer irreparable harm pending trial, if the interlocutory injunction sought by Mr Nyoni is not granted. In addition, this case is intended to be listed for hearing in May 2015. The precise dates in May are not yet settled because the dates of my Full Court duties in May have not yet been published.

13    Further, if Mr Nyoni is able to prove at trial that he has incurred damage arising from failed job applications in the past, damages will be an adequate remedy.

14    Accordingly, I will dismiss Mr Nyoni’s application for the interlocutory injunction.

15    I will order that the costs of today’s hearing be in the cause; but I order that Mr Nyoni pay wasted costs arising from Mr Nyoni being 30 minutes late in appearing in Court today. The wasted costs Mr Nyoni is to pay are $100 each in respect of the wasted time of each of the two solicitors who was present and waiting in Court today for Mr Nyoni to appear.

16    I would observe that Mr Nyoni initially asked that this application be heard on the papers. I listed the application for a mention today. However, the parties filed submissions and evidence before the hearing and were ready to argue the application. Accordingly, I have heard and disposed of the application for interlocutory injunctive relief.

Associate:

Dated:    10 March 2015