FEDERAL COURT OF AUSTRALIA

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

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.

REASONS FOR JUDGMENT

1    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.

2    The local authority for Kellerberrin is, and was at all material times, the Shire of Kellerberrin (the Shire).

3    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.

4    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.

5    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.

6    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.

7    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.

8    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.

9    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.

10    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.

11    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.

12    On about 17 March 2010, Mr Nyoni was advised that his application for the PBS approval number was successful.

13    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.

14    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.

15    Thereafter, officers of the Shire engaged in a number of activities inimical to the business interests of Mr Nyoni.

16    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.

17    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.

18    In this proceeding, Mr Nyoni claims loss and damage.

the proceeding

19    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

20    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.

21    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.

22    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.

23    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.

24    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”.

25    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.

26    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.

27    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.

28    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.

29    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).

30    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”.

31    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.

32    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.

33    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.

34    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).

35    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.

36    Section 31E(1) provided for the issue by the magistrate of a warrant on the application of the investigator.

37    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).

38    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

39    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.

40    In 2007, Mr Frank Peczka was the Chief Executive Officer of the Shire.

41    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.

42    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.

43    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.

44    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”.

45    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.

46    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.

47    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.

48    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.

49    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.

50    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.

51    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.

52    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.

53    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.

54    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.

55    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.

56    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.

57    On 25 September 2007, Mr Patterson, Ms Harkins and Dr Masters met in relation to the complaints.

58    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…

59    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.

60    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.

61    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.

62    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.

63    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.

64    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.

65    On 15 October 2007, Mr Bateman returned to Kellerberrin and carried out further investigations.

66    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.

67    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:

•    Numerous dispensing errors

•    Supply of Schedule 4 medicines by a non-pharmacist

•    Failure to comply with the Poisons Regulations in regard to the recording of Schedule 8 medicine transactions

•    Inaccuracies 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.

68    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.

69    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.

70    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.

71    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.

72    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.

73    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.

74    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.

75    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.

76    On 31 July 2008 and 22 October 2008, Mr van Bronswijk visited the premises of the Kellerberrin pharmacy again.

77    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.

78    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.

79    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.

80    In February 2009, Mr Friend replaced Mr Peczka as Chief Executive Officer of the Shire.

81    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.

82    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.

83    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.

84    On his visit of 3 March 2009, Mr Bateman found no infringements of the Poisons Act.

85    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.

86    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:

•    The 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.

•    Matters 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.

•    The 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.

87    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.

88    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.

89    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.

90    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.

91    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.

92    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.

93    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.

94    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.

95    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.

96    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.

97    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”.

98    On 16 February 2010, there was a meeting of the Shire Council.

99    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”.

100    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.

101    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 http://www.pswa.org.au/. I trust this information is of assistance.

102    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.

103    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.

104    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.

105    On 15 March 2010, Mr Tucker also contacted Mr van Bronswijk to advise him that the power had been disconnected.

106    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.

107    On 17 March 2010, the electrical power was restored to the Kellerberrin pharmacy.

108    Also, on or about 17 March 2010, Mr Nyoni was advised that a new PBS approval number had been issued to him.

109    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.

110    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.

111    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.

112    Mr Nyoni never responded to Mr Friend’s letter.

113    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.

114    Mr Nyoni never responded to the offer from Mr McDonnell.

115    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.

116    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.

117    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.

118    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.

119    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.

120    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.

121    During the period 16 April 2010 to 2 June 2010, whilst the petition was in circulation, 149 people signed the petition.

122    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”.

123    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?

124    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.

125    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.

126    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.

127    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.

128    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.

129    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.

130    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.

131    On Sunday, 1 August 2010, Mr Friend met with the Minister for Health, Dr Kim Hames, about Mr Nyoni and the Kellerberrin pharmacy.

132    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.

133    This incident is the subject of a claim in this proceeding and I will deal with this matter in detail later in these reasons.

134    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.

135    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.

136    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.

137    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.

138    I make findings of fact in relation to the matters set out at [39] to [137] above.

witnesses

The applicant’s witnesses

139    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

140    Mrs Nyoni gave evidence and was cross-examined.

141    Mrs Nyoni gave evidence in her second language. There was an element of passion in the manner in which Mrs Nyoni gave her evidence.

142    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.

143    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

144    Mr Nyoni gave evidence and was cross-examined.

145    There were a number of unsatisfactory aspects to Mr Nyoni’s evidence.

146    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.

147    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.

148    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

149    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.

150    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.

151    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

152    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

153    Ms Coleman was a person who cleaned Mr Nyoni’s pharmacy. Ms Coleman was a good and credible witness.

Mr Gavin Van Der Linden

154    Mr Van Der Linden is an accountant. He purported to give expert evidence in relation to the economic losses which Mr Nyoni suffered.

155    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.

156    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

157    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

158    Mr Robert Bateman gave evidence and was cross-examined. Mr Bateman was until 2011, a senior investigating officer employed by the Health Department.

159    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

160    Mr Friend gave evidence and was cross-examined.

161    Mr Friend was an unsatisfactory witness.

162    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

163    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

164    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

165    Mr Peczka gave evidence and was cross-examined. Mr Peczka was a satisfactory witness and I have accepted his evidence.

Mr Stanley McDonnell

166    Mr McDonnell gave evidence and was cross-examined.

167    Mr McDonnell, in my view, was a credible witness who gave evidence to the best of his ability.

168    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.

169    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.

170    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.

171    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.

172    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

173    Ms Del Borrello gave evidence and was cross-examined.

174    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.

175    In my view, Ms Del Borrello was a satisfactory witness.

Mr Raymond Griffiths

176    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.

177    Mr Griffiths was a satisfactory witness.

Mr Timothy van Bronswijk

178    Mr van Bronswijk gave evidence and was cross-examined.

179    In my view, Mr van Bronswijk was a satisfactory witness.

Mr Kevin Cleverly

180    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.

181    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.

182    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.

183    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.

184    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

185    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.

186    Mr Varney was a satisfactory witness.

the claims

187    I deal with each of the claims individually.

trespass – mr bateman’s attendance at the KELLERBERRIN pharmacy in october 2007

188    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.

189    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.

190    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.

191    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.

192    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.

193    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.

194    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.

195    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.

196    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.

197    The second of Mr Nyoni’s contentions, in effect, invokes the so-called doctrine of trespass ab initio.

198    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”.

199    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.

200    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.

201    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.

202    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.

203    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.

204    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.

205    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.

206    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.

207    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.

208    Lord Toulson JSC observed as follows:

19    Joint 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.

20    We are concerned with a different category in which the defendant, D, has allegedly assisted the principal tortfeasor, P, in the commission of tortious acts…

21    To 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.

209    Further, Lord Neuberger of Abbotsbury PSC observed as follows:

54    The claimant contends that it has suffered damage as a result of a tort committed by one person, “the primary tortfeasor”, and that another party, “the defendant”, who did not directly join with the primary tortfeasor in actually committing the tort, and was not the primary tortfeasor’s agent or employee, is also liable for the tort, because he assisted the primary tortfeasor to commit the tort.

55    It seems to me that, in order for the defendant to be liable to the claimant in such circumstances, three conditions must be satisfied. First, the defendant must have assisted the commission of an act by the primary tortfeasor; secondly, the assistance must have been pursuant to a common design on the part of the defendant and the primary tortfeasor that the act be committed; and, thirdly, the act must constitute a tort as against the claimant. As Lord Toulson JSC says, this analysis is accurately reflected in the statement of the law in Clerk and Lindsell on Torts, 7th ed (1921), p 59, cited by all members of the Court of Appeal in The Koursk [1924] P 140, 151, 156, 159.

56    Because this type of tortious liability is so fact sensitive and needs to be kept within realistic bounds, there is a danger that further analysis of these three requirements will serve to confuse. Bankes LJ made that point in The Koursk, p 151, when he said: “It would be unwise to attempt to define the necessary amount of connection”, and that each “case must depend upon its own circumstances.” To the same effect, Mustill LJ in Unilever plc v Gillette (UK) Ltd [1989] RPC 583, 608, warned against over-analysis of the cases on this topic…

210    A majority of the Supreme Court upheld the primary judge’s finding that the contribution of SSUK to the ramming operation and, therefore, to the commission of the tort alleged by the claimant, was of “minimal importance” and that SSUK “played no effective part in the commission of the tort”. This was based on the findings that the only contribution made by the SSUK to the common design was to permit itself to be named in the solicitation document prepared by SSCS, and that the GBP1,730 in donations which SSUK paid to SSCS was intended by the contributors to be paid in any event to SSCS, and not to be held beneficially by SSUK.

211    I now deal with the evidence in relation to Mr Bateman’s attendance at the pharmacy in October 2007.

212    Mrs Amira Nyoni said in her witness statement that on 2 October 2007, Mr Bateman entered the pharmacy premises. Mr Nyoni, said Mrs Nyoni, was busy at the time and Mr Bateman waited to speak to Mr Nyoni. After waiting for about 10 minutes Mr Bateman spoke to Mr Nyoni. Mrs Nyoni said that Mr Nyoni and Mr Bateman then went to the back of the shop and Mr Nyoni and Mr Bateman had a conversation.

213    Mrs Nyoni also said that Mr Bateman was carrying a large briefcase when he came into the pharmacy. Mrs Nyoni said that she heard Mr Bateman say that before he came to the pharmacy he had been to the nursing home and hospital and that they had given him a Webster pack which had a mistake. Mr Bateman, said Mrs Nyoni, produced the Webster pack.

214    Mrs Nyoni also said that Mr Bateman said that before he had come to the pharmacy he had a meeting with the community about complaints and that he wanted to discuss the complaints with Mr Nyoni.

215    Mrs Nyoni also said that Mr Bateman asked Mr Nyoni about his qualifications and Mr Nyoni went to the filing cabinet located in the pharmacy and started looking for some documents. Mr Nyoni could not find everything, said Mrs Nyoni, and then Mr Bateman said: “Well find what you can find, and I will try to get the rest from the people who authorised the qualifications.”

216    Mrs Nyoni also deposed that Mr Bateman also took Mr Nyoni to the safe and Mr Bateman started counting a medicine called “Temaze” and other medications in the dispensary area. Mr Bateman also asked Mr Nyoni to print a report from a software package on the computer.

217    Mrs Nyoni said that after Mr Bateman counted the medications he telephoned someone in the Health Department.

218    Mrs Nyoni said that Mr Peczka came into the pharmacy two to three times on the first day that Mr Bateman was in the pharmacy, at intervals of about an hour and a half to two hours apart.

219    Mrs Nyoni said that on one occasion Mr Peczka walked into the pharmacy and asked whether he could speak to Mr Bateman, who was then speaking to Mr Nyoni. Mrs Nyoni then said that she told Mr Bateman that: “Frank wanted to talk to you.” Mrs Nyoni said that Mr Peczka then spoke to Mr Bateman but she did not hear what they said.

220    On the second occasion when Mr Peczka came into the pharmacy, said Mr Nyoni, he went straight to where Mr Bateman was located and Mrs Nyoni did not speak to him.

221    Mrs Nyoni said on the third occasion when Mr Peczka came into the pharmacy, to the best of her recollection, he purchased some antihistamine as well as speaking to Mr Bateman.

222    Mrs Nyoni said that on one occasion when Mr Bateman left the pharmacy premises, she followed him to see where he was going, and she saw Mr Bateman turn into the Shire offices and then have a discussion with Mr Peczka.

223    Mrs Nyoni also said that on another occasion when Mr Bateman left the pharmacy, she went to the Shire offices to pay the car registration and she saw Mr Bateman speaking to the employees at the front desk of the Shire offices.

224    Mrs Nyoni said that when Mr Bateman finally left the pharmacy on 2 October 2007, he said he would come back to the pharmacy the next day to finish.

225    Mrs Nyoni said that Mr Bateman came back the next day and spoke to Mr Nyoni about the complaints and said that Ms Beech had given him the names of persons who had made the complaints. Mrs Nyoni said that she could not recall hearing what was actually said by Mr Bateman to Mr Nyoni.

226    Mrs Nyoni denied the suggestion in cross-examination, that Mr Bateman did not arrive at the pharmacy on the second day.

227    Mr Nyoni gave evidence saying that on 2 October 2007 at around 10:30 am to 11:00 am, he noticed that Mr Bateman was in the pharmacy. Mr Nyoni said that Mr Bateman introduced himself and said that he was an inspector from the Health Department. He said that he had come to investigate complaints about the pharmacy. Mr Nyoni said that he and Mr Bateman then went to a secluded area at the back of the pharmacy.

228    Mr Nyoni said that on the first day, Mr Bateman had said to him that there had been complaints made by the hospital staff especially the nursing sister, Ms Beech. Mr Nyoni deposed that Mr Bateman had said to him that if he wanted to resolve the problems quickly he would be better off accepting the problems and then Mr Bateman would rescue him from it.

229    Mr Nyoni said that Mr Bateman asked him about complaints about the pharmacy which had been raised by the hospital staff.

230    Mr Nyoni also said that Mr Bateman questioned him about his qualifications.

231    Mr Nyoni said that Mr Bateman had also asked him about dispensing errors in the preparation of a Webster pack. Mr Nyoni said that Mr Bateman did not show him any statements or written complaints.

232    Mr Nyoni said that Mr Bateman used the pharmacy’s computer to print a report called an “Owing Script Report”. This is a report which is produced by the operation of the dispensing computer.

233    Mr Nyoni said that Mr Bateman also took with him the Sch 8 register in which Mr Nyoni recorded the dealings in relation to Sch 8 substances.

234    Mr Nyoni then said that Mr Bateman spent time counting “Temaze” capsules and other medicines.

235    Mr Nyoni said that on the second day, Mr Bateman returned to the pharmacy, and raised with him the question of Mr Nyoni’s brother having a dental surgery in Perth. Also, said Mr Nyoni, on the second day, Mr Bateman brought with him a Webster pack which Mr Bateman said had not been properly prepared by the Kellerberrin pharmacy.

236    Mr Nyoni said that whilst Mr Bateman was in the pharmacy, Mr Peczka arrived and entered the pharmacy and engaged in a discussion with Mr Bateman. Mr Peczka came to the pharmacy on three occasions, said Mr Nyoni. Mr Nyoni said that Mr Bateman spoke to Mr Peczka in a manner which was largely inaudible to him.

237    Mr Nyoni said that on each occasion when Mr Bateman wanted a break, he went back to the Shire offices and there met Mr Peczka.

238    Mr Peczka denied that he had been into the Kellerberrin pharmacy on 2 October 2007. Mr Peczka said that he had not been informed in advance that Mr Bateman would be coming to the Kellerberrin pharmacy in October 2007. Mr Peczka said that he had met Mr Bateman sometime around 2 and 3 October 2007 at the Shire offices. Mr Peczka said that his best recollection was that Mr Bateman came to the Shire offices and spoke to the reception staff about address details that he wanted as part of his investigation at the time. Mr Peczka said that a member of the reception staff came to him and said that there was someone from the Health Department asking about addresses, and that he came out and met Mr Bateman. Mr Peczka said he was certain that he did not go into the pharmacy and speak to Mr Bateman on 2 October 2007 or at any other time.

239    Mr Bateman said in evidence, that Mr Peczka never visited him whilst he was at the pharmacy.

240    I accept the evidence of Mr Peczka and Mr Bateman on the question of whether Mr Peczka entered the pharmacy on 2 October 2007 and spoke to Mr Bateman.

241    Each of Mr and Mrs Nyoni’s evidence in relation to the presence of Mr Peczka at the pharmacy and his alleged acting in concert with Mr Bateman was unsatisfactory.

242    Mrs Nyoni was unable to give evidence as to the content of any of the alleged conversations between Mr Peczka and Mr Bateman.

243    Mr Nyoni’s evidence as to the content of the alleged conversations was inconsistent and unconvincing. At 240 of the transcript, Mr Nyoni gave the following evidence:

What did Mr Peczka say to Mr Bateman?

Well, some of the things were inaudible, but the main thing which I picked up was that the – that they were referring to the previous sort of conversations about that visit, and that - - -

And what were his actual words, as far as you remember?

The actual words – the actual words were the – to do with – yes, to the fact that how – how long I going to be here, and when you finish you come back to the office, as – as arranged, and we – we – and he did come three times on that occasion. Mr Peczka continued that - - -

244    However, at 242 of the transcript, Mr Nyoni gave a different account of what Mr Peczka said:

So you never saw Mr Peczka actually telling Mr Bateman what questions to ask?

Specific questions? No..…they were general conversations and they wouldn’t have been – they would have been all in relation to what Mr Bateman - - -

But I need you [sic] to know what you actually heard. I don’t want you to speculate about what they would have been about. What did you actually hear?

Well, I heard that the – “This is what I have told you before, that there’s a problem in this pharmacy and this is why we have to resolve that as quickly as we can”.

Who said that?

That was Mr Peczka telling Mr Bateman.

245    In my view, the allegation made by Mr Nyoni that the Shire and Mr Bateman were acting in concert when Mr Bateman entered the pharmacy on 2 October 2007, was the product of reconstruction by Mr Nyoni based upon ex post facto assumptions made by Mr Nyoni, consequent upon Mr Nyoni reading the minutes of the Shire Council meeting of 16 February 2010. I base this finding upon the following evidence at 241 of the transcript:

No, you – you did actually see him in Mr Peczka’s company in the Shire offices. Is that right? Or are you assuming that?

I did not go to the - to the office itself, but having seen him talk with him, and go with him out – inside and outside, it was – it occurred to me that there was no one else he could be talking to, especially these matters which were raised by the Shire itself, were matters which Mr Bateman was also raising.

But had the Shire raised any matters with you before Mr Bateman arrived?

Subsequently, I learnt that those issues were being raised only after reading the minutes. That was much later. I only learnt to join those things together because the minutes made it clear to me that these issues were actually being raised.

and also at 242 of the transcript:

So the evidence that you rely on in relation to Mr Peczka is that he came to speak to Mr Bateman when Mr Bateman was in the – carrying out inspection in the pharmacy?

Yes. And that is spend all the time with him and recommending to him what to do and what Mr - - -

How do you know he recommended anything to Mr Bateman?

Because the type of allegations which Mr Bateman made were the same allegations which were made by the shire and which were all raised by the – this - - -

These are the allegations that are found in the minutes of the shire three years later?

Three – that’s right.

246    It follows that I find that Mr Peczka did not enter the Kellerberrin pharmacy at any time on 2 October 2007, nor did he talk to Mr Bateman whilst Mr Bateman was in the pharmacy.

247    Further, I find that Mr Peczka did not procure or direct that Mr Bateman enter the pharmacy and carry out the actions which he did whilst there. Nor did Mr Peczka act in concert with Mr Bateman when Mr Bateman entered the pharmacy and engaged in the conduct which he did whilst there. There was no common design between Mr Bateman and Mr Peczka and Mr Peczka did not engage in any conduct which contributed to, or assisted in, the carrying out of acts by Mr Bateman which are alleged to comprise the trespass.

248    In addition, there was no evidence that any other officer of the Shire was involved in procuring the attendance of Mr Bateman at the Kellerberrin pharmacy and/or procuring the conduct in which Mr Bateman engaged whilst there.

249    It follows, that I dismiss Mr Nyoni’s claim that each of Mr Peczka and the Shire is liable as a joint tortfeasor in the alleged trespass by Mr Bateman in respect of the Kellerberrin pharmacy premises in October 2007.

250    In light of the conclusions to which I have come in relation Mr Nyoni’s claim that Mr Peczka and the Shire acted in concert with Mr Bateman, and the fact that Mr Bateman is not a party to this proceeding, but is a party to an action in the Supreme Court of Western Australia in which the same allegations are made against him, I am of the view that it is not appropriate to make a definitive finding in respect of whether the conduct of Mr Bateman amounted to trespass on the basis of either one or both of the contentions raised by Mr Nyoni. It is suffice to say that the evidence which emerged shows that Mr Bateman has a serious case to answer in relation to Mr Nyoni’s claim of trespass.

251    As I have already said, I dismiss Mr Nyoni’s claim that each of Mr Peczka and the Shire is liable as a joint tortfeasor in respect of the alleged trespass engaged in by Mr Bateman in respect of the Kellerberrin pharmacy premises on 2 and 3 October 2007.

malicious falsehood

252    The second claim made by Mr Nyoni is that Mr Peczka and the Shire engaged in malicious falsehood and/or misleading or deceptive conduct by making statements to customers of the pharmacy which were disparaging of Mr Nyoni in his capacity as a pharmacist and of Mr Nyoni’s business, and which caused Mr Nyoni loss and damage. This claim was set out in detail in the particulars which Mr Nyoni provided on 15 July 2013.

253    In his particulars of the allegation, Mr Nyoni alleged that the following persons, in addition to Mr Peczka, had made the disparaging statements to customers of the pharmacy, and that in doing so they had been acting on behalf of the Shire:

Ms Theresa Beech,

Ms Noreen Bonser,

Mr Raymond Griffiths,

Ms Heather Sharman,

Ms Bernice Del Borrello,

Mr Robert Bateman, and

Mr Timothy van Bronswijk.

254    The disparaging statements which Mr Nyoni relied upon are, in summary, to the following effect:

(a)    Mr Nyoni was dispensing “wrong and foul medicines” and was, therefore, going to lose his licence.

(b)    Mr Nyoni is “leaving town at the end of the year”. These statements were allegedly made each year around Christmas.

(c)    Mr Nyoni had a terminal illness and was not fit to dispense medicines.

(d)    Mr Nyoni was not in a fit state of mind because of his illness and the respondents were taking steps to “discontinuing him from the pharmacy”.

(e)    Mr Nyoni had harmed the health of many customers of the pharmacy, and customers were advised not to buy medicines from his pharmacy.

255    Mr Nyoni gave detailed particulars of each of the customers to whom each of the statements were allegedly made by each of the persons referred to in [253] above.

256    However, during the trial, Mr Nyoni led no evidence which established that any of the persons alleged by Mr Nyoni as having made the disparaging statements, had actually made the statements alleged. Mr Nyoni did not call as a witness even one of the persons named in the particulars as a person to whom the disparaging statements had allegedly been made.

257    Nor, was Mr Nyoni able to establish, other than in relation to Mr Peczka and Mr Griffiths, that any of the persons referred to in [253] above, who were alleged to have acted on behalf of the Shire in making the statements, had any relationship with the Shire as would render the Shire being potentially liable for that person’s alleged conduct.

258    It follows that Mr Nyoni’s claim based on the alleged making of the alleged statements referred to at [254] above, is dismissed. It is apparent that this claim should never have been made.

259    Accordingly, I dismiss Mr Nyoni’s claim that Mr Peczka and the Shire engaged in malicious falsehood, alternatively, misleading or deceptive conduct, by making the statements referred to in [254] above.

trespass – disconnection of electricity

260    This claim alleges that Mr Peter Mitchell trespassed on to the property of the Kellerberrin pharmacy on 15 March 2010 and on 14 October 2010, in the course of disconnecting the electricity supply to the Kellerberrin pharmacy.

261    I observe that the respondents did not dispute that Mr Nyoni, as the person in possession of the Kellerberrin pharmacy, was entitled to bring a claim for trespass in relation to any person alleged to have entered or remained on the premises of the Kellerberrin pharmacy without lawful authority or without Mr Nyoni’s consent.

262    There will be a trespass where a person intentionally enters or remains upon land in possession of another person without the permission of that person, or without lawful authority. It is no defence that the person who intentionally enters or remains on the land mistakenly believes he or she has lawful authority to be on the land, if, in fact, that person has no such authority.

the claim in respect of the disconnection of the electricity on 15 march 2010

263    Mr Nyoni alleged that on 15 March 2010, Mr Mitchell engaged in a trespass in respect of the pharmacy premises when he disconnected the electricity to the pharmacy, and that Mr Friend, Mr McDonnell and the Shire are liable as joint tortfeasors for the conduct of Mr Mitchell.

264    I find that Mr Mitchell disconnected the electricity on 15 March 2010. However, I find that Mr Mitchell did not enter the pharmacy premises to disconnect the electricity, and that he disconnected the electricity from outside of the pharmacy. Mr Mithcell gave evidence that he disconnected the electricity from an electricity pole outside the pharmacy which he accessed from a cherry-picker. I accept that evidence. Mrs Nyoni also gave evidence that the electricity had been disconnected from outside and not inside the pharmacy. Accordingly, I find that Mr Mitchell did not enter the pharmacy premises and, therefore, that the alleged trespass did not occur.

265    In any event, I find that Synergy had authorised the disconnection of the electricity on the grounds of non-payment by Mr Nyoni of the electricity account for the pharmacy. I find that Mr Nyoni was in arrears on that account when the disconnection of the electricity occurred.

266    It follows, that Mr Nyoni’s claim against Mr Mitchell, Mr Friend, Mr McDonnell and the Shire as joint tortfeasors in respect of the alleged trespass on 15 March 2010, is dismissed.

the claim in respect of the disconnection of the electricity on 14 october 2010

267    Mr Nyoni alleged that on 14 October 2010, Mr Peter Mitchell engaged in a trespass when he entered and remained on the pharmacy premises and when he interfered with the electricity meter box which was located within the pharmacy premises in the course of disconnecting the electricity supply to the pharmacy.

268    Mr Nyoni alleged that Mr Mitchell trespassed because he had no authority or right to disconnect the electricity and so no right to enter the pharmacy premises for that purpose. Mr Nyoni also alleged that Mr Friend, Mr McDonnell and the Shire are liable for the conduct of Mr Mitchell because Mr Friend and Mr McDonnell procured and authorised Mr Mitchell to enter the premises to cut off the electricity, or otherwise acted in concert with Mr Mitchell in engaging in the acts which constituted the trespass. It is alleged that the Shire is vicariously liable for the conduct of Mr Friend and Mr McDonnell.

269    It is also common cause that Mr Nyoni on 14 October 2010, was not in default in respect of his payment obligations to Synergy in respect of the electricity account for the pharmacy, and Synergy had not authorised the disconnection of the electricity to the pharmacy.

270    Each of Mrs Nyoni, Mr Mitchell, Mr Varney, Mr Friend, Mr van Bronswijk and Mr Bateman gave evidence about the circumstances surrounding the disconnection of the electricity to the pharmacy on 14 October 2010 and its aftermath.

271    I make the following findings.

272    On the morning of 14 October 2010, Mr Varney orally instructed Mr Mitchell to disconnect the electricity at the Nyoni properties which Mr Mitchell understood to mean that he was to disconnect the electricity at both Mr Nyoni’s house and at the pharmacy. It was Mr Varney’s usual practice to send, by facsimile, to Mr Mitchell the written authorisation from Synergy to carry out the disconnection. However, Mr Varney did not do so on this occasion.

273    After having received the instructions, and before he had executed his instructions on that day, Mr Mitchell advised Mr Friend that he would be cutting off the electricity at both the pharmacy and the Nyoni residence in Bedford Street. I accept Mr Mitchell’s evidence that it not his normal practice to advise the Shire that he intended to disconnect the electricity of a resident of Kellerberrin on the instructions of Synergy, before he disconnected the electricity.

274    Mr Mitchell went to the residence of the Nyoni family and disconnected the electricity to that house at 3.01pm. I base this finding on the contents of the letter which Mr Mitchell signed on 14 October 2007 - only an hour or so after he had disconnected the electricity to the house.

275    Mr Mitchell then went to the Kellerberrin pharmacy and entered the premises, with the intention of disconnecting the electricity to the pharmacy. There was a conflict in the evidence between Mrs Nyoni and Mr Mitchell as to what happened when Mr Mitchell entered the pharmacy premises.

276    Mrs Nyoni said in evidence that on 14 October 2010 she was in the pharmacy when Mr Mitchell came in to disconnect the electricity. Mrs Nyoni said that Mr Mitchell was there for about 15 minutes before he turned the electricity off. Mrs Nyoni said that Mr Mitchell said that he was in a hurry and that his billing rate was $80 an hour and that he did not have time to waste. Mrs Nyoni said that Mr Mitchell said that he had authority from Synergy to disconnect the electricity to the pharmacy. Mrs Nyoni said that Mr Mitchell refused her request to produce written evidence that he was entitled to disconnect the electricity, and that she tried to stop him from disconnecting the electricity.

277    Mrs Nyoni said that Mr Mitchell “chased the customers out of the pharmacy”. Mrs Nyoni said that she telephoned Mr Nyoni, who was in hospital at the time, to advise him that Mr Mitchell was present in the pharmacy and intended to disconnect the electricity.

278    Mrs Nyoni went on to say that whilst Mr Mitchell was in the pharmacy and before he disconnected the electricity, the locum pharmacist was able to finish dispensing one of the prescriptions which had been presented by a customer and that the locum pharmacist was also able to complete two other scripts of customers who were waiting to have their scripts dealt with.

279    Mr Mitchell said he walked into the pharmacy and saw Mrs Nyoni was behind the counter and advised her that he had spoken to a disconnections contractor who had told him that she had not paid her bills and that he had to shut the power down. Mr Mitchell went on to say that Mrs Nyoni said that this was “rubbish” and that she would call the “electrical ombudsman”.

280    Mr Mitchell said that he went to the front of the pharmacy where the meter box was located behind a cupboard. He said that one needed to be in the pharmacy to access the meter box.

281    Mr Mitchell said that he wrote down the meter numbers and took a meter reading. Mr Mitchell went on to say that Mrs Nyoni told him that the “electrical ombudsman” had said that he was not to turn off the electricity. Mr Mitchell said that Mrs Nyoni then said to him that “the Shire was against us” and the Shire had made him do this. Mr Mitchell told Mrs Nyoni that this did not have anything to do with the Shire.

282    Mr Mitchell said that when he came into the pharmacy, there were some customers there and after they left he said that he went to the meter box and turned off the power. He said that he had been at the pharmacy for at least one hour when he turned the power off.

283    Mr Mitchell said that he then drove home and once he was at home he telephoned Mr Varney to give him the meter numbers and the meter readings. Mr Mitchell said that he could not remember the exact time but he thought it was between 5:00 pm and 6:00 pm. Mr Mitchell said that he then reported to Mr Varney that he had disconnected the electricity to the pharmacy and Mr Nyoni’s house, and he gave Mr Varney the meter readings for both locations. Mr Mitchell said that Mr Varney then said words to the effect: “Oh did you do both?” and he said words to the effect: “Yes. That’s what you told me to do this morning.” According to Mr Mitchell, Mr Varney then said words to the effect: “Oh look sorry I have made a mistake. It was only his house that needed doing. Can you go and put the pharmacy back on?”

284    I find that when Mr Mitchell advised Mrs Nyoni that he was there to disconnect the electricity to the pharmacy on the authority of Synergy because the electricity account had not been paid, Mrs Nyoni protested at Mr Mitchell’s assertion to that effect, that she denied that he was entitled to disconnect the electricity to the pharmacy and tried to stop him from doing so. I find that Mr Mitchell did not in response to Mrs Nyoni’s request, produce any written evidence to Mrs Nyoni to justify his claim that Synergy had authorised the disconnection of the electricity to the pharmacy; nor did he make any further inquiry from Mr Varney, nor take any other step to satisfy himself that a disconnection notice had, in fact, been issued by Synergy for the pharmacy.

285    I find also that Mr Mitchell behaved in the manner described by Mrs Nyoni, namely, that he said that he was in a hurry and he was dismissive of her protest at his claim to be entitled to disconnect the electricity. I do not accept the evidence of Mr Mitchell that he was in the pharmacy for at least an hour. That evidence is inconsistent with the contemporaneous evidence disclosed in the letter which he signed later that day within a very short time after he had disconnected the electricity to the pharmacy, which showed that Mr Mitchell disconnected the electricity to the pharmacy at 3:32pm.

286    After Mr Mitchell disconnected the electricity to the pharmacy, Mrs Nyoni closed the pharmacy.

287    Meanwhile, at 3:31 pm on 14 October 2010, Mr Friend sent an email to Mr van Bronswijk and Mr Bateman, with copies to each of the councillors of the Shire as well as Mr Griffiths, Mr Tucker and Mr Tom Applegate, to the following effect:

Tim/Robert I have been advised by Peter Mitchell, the local electrician, that he is cutting the power at both the pharmacy and Nyoni residence on Bedford Street this afternoon. I assume I will see you both tomorrow?

288    Mr Friend said in evidence that the reason he contacted Mr van Bronswijk and Mr Bateman was that in April 2010, he and Mr Tucker had met with Mr van Bronswijk and Mr Bateman when they came to inspect the pharmacy and that they had told him at that meeting, that if there were any issues in relation to the pharmacy, they should be contacted immediately.

289    At 4:04 pm on 14 October, Mr van Bronswijk replied to Mr Friend in the following terms:

Please arrange to have the electrician confirm to me in writing on his letterhead (electronically or by facsimile) that he has carried out disconnection of the power supply to both premises once he has done so.

290    Mr van Bronswijk said, in cross-examination, that on receiving the email from Mr Friend advising him of the imminent disconnection of the electricity to Mr Nyoni’s pharmacy and house on 14 October 2010, that he sought confirmation of the disconnection for the purposes of pursuing disciplinary action against Mr Nyoni. I accept that evidence.

291    Later on 14 October, Mr Mitchell signed a letter which had been produced for him. The letter was not produced on pre-printed stationery containing Mr Mitchell’s trading name as letterhead. Rather, the trading name and the contents of the body of the letter are part of the same professionally formatted and presented document. The letter was dated 14 October 2010 and stated:

To Whom It May Concern

Re disconnection of power to both sites owned by Chemist one being house and other being owner’s business.

Meter number for house is…disconnected at 3.01 pm on 14 October

Meter number for chemist shop is…disconnected at 3.32 pm on 14 October

Please note this is not the first time this has occurred on the same premises.

292    Once printed, the letter was then signed by Mr Mitchell and sent from the Shire to Mr van Bronswijk. Mr van Bronswijk said he received the letter on 14 October 2010, either as a facsimile or as an attachment to an email. Regrettably, and somewhat curiously, the discovery provided by the respondents did not establish in what form the document was sent from the Shire offices to Mr van Bronswijk.

293    The electricity to the pharmacy was reconnected by Mr Mitchell at around 9:45 am on 15 October 2010.

294    By email sent at 10:58 am on 15 October 2010, Mr Friend advised Mr van Bronswijk that the electricity to the pharmacy had been switched back on. Mr van Bronswijk gave evidence that neither Mr Friend nor anybody else had advised him that the electricity had been switched off through no fault of Mr Nyoni. I find this to be the fact.

295    Mr van Bronswijk emailed Mr Friend on 15 October 2010 saying:

Thanks for letting us know, we have taken legal advice on the matter and will be writing to Mr Nyoni today regarding this issue.

Given that the issue has been rectified, and the Council ceases to exist at 5.00 pm today, there is little else we can legitimately do at this point in time…

296    Mr van Bronswijk was left with the impression that Mr Nyoni was to blame for the disconnection of the electricity. On 15 October 2010, the registrar of the Pharmaceutical Council wrote a letter to Mr Nyoni stating:

On 14 October 2010 the Council was advised by a licenced electrical contractor that at 3.32 pm on 14 October he disconnected the electricity supply to Kellerberrin pharmacy.

Council was subsequently advised that the electricity supply to the pharmacy was reconnected at around 10.00 am this morning.

This Council regards the continuous supply of electricity to registered pharmacy premises as essential to the provision of a professional pharmacy service. It is concerned that interruption of electricity supply to any pharmacy may render the provision of a safe and timely pharmacy service difficult.

I suggest you take steps to ensure that this episode is not repeated in the future.

297    On 19 October 2010, Dr Robertson of the Health Department wrote the following letter to Mr Nyoni:

I am writing to you as the Licence Holder for Kellerberrin Pharmacy (Pharmaceutical Chemist Licence 1983, issued under the Poisons Act 1964).

The Department has been advised that the electrical power to Kellerberrin Pharmacy was disconnected, at the request of Western Power, at 3.32 pm on 14 October 2010. I understand the power was reconnected at approximately 10 am on 15 October 2010. I am aware that the electrical power was similarly disconnected from Kellerberrin Pharmacy between 15 March 2010 and 17 March 2010.

Obviously power outages do occur at times as a result of natural disasters. However, this does not appear to be the case in the instances described above.

I am very concerned that continued disconnection of electrical power from Kellerberrin Pharmacy makes it very difficult for scheduled medicines to be stored at the correct temperature, especially over the summer months and particularly if the pharmacy stocks medicines which require refrigeration. Should you choose to operate the pharmacy while the power is off, the risk of non-compliance with the labelling and recording requirements for Schedule 4 and Schedule 8 medicines, as specified in the Poisons Regulations 1965, is also likely to be increased unless you have a back-up power supply for operation of your dispensing computer system.

Section 24 of the Poisons Act 1964 requires the Chief Executive Officer (CEO) to be satisfied that the premises of the applicant is suitable for the purpose for which the application is made and is properly and hygienically equipped for that purpose, before the CEO issues a licence under the Act. Regular and prolonged disconnection of electrical power could be considered to render the premises unsuitable for use as a pharmacy. This letter is to advise you that, should another power disconnection occur under similar circumstances, consideration will be given to suspending your Pharmaceutical Chemist Licence for Kellerberrin Pharmacy.

298    I infer from the contents of this letter that the Health Department had prior to Dr Robertson writing the letter, also been sent the confirmation letter of 14 October signed by Mr Mitchell. I also infer that neither Dr Robertson nor anybody else at the Health Department, had been advised that the disconnection of the electricity to the pharmacy had not been attributable to any fault on the part of Mr Nyoni.

299    I now deal with the question of what Mr Mitchell did after he disconnected the electricity at the pharmacy and the circumstances in which the letter of 14 October 2010 which was signed by Mitchell, came to be produced and transmitted to Mr van Bronswijk, and also, at some time, the Health Department.

300    Mrs Nyoni’s evidence was that she closed the pharmacy after the electricity had been disconnected. Mrs Nyoni said that after closing the pharmacy, she and the locum pharmacist who had been working in the pharmacy at the time of the disconnection, went for a walk. Mrs Nyoni said that they walked past the Shire office and she saw Mr Mitchell standing in the front of the Shire office laughing and talking to Mr Friend.

301    Mr Mitchell’s evidence on whether he went to the Shire offices after the disconnection of the electricity to the pharmacy and how the letter of 14 October 2010 came to be produced was unsatisfactory.

302    In his affidavit, Mr Mitchell did not refer to the letter of 14 October 2010, and, therefore, did not depose as to the circumstances in which the letter came into existence.

303    Mr Mitchell gave the following oral evidence about the letter, at 133 of the transcript, when questioned by the Court:

And did Mr Field ask you to write that letter?---Mr – Mr Friend?

Sorry. Mr Friend?---Mr Friend would have asked me for confirmation of it, yes.

Yes. Did you think that was strange?---With the ongoing issues that were in the town at that stage – and once again this is not just an isolated event. This is a lot – it’s a lot that has been building up to all of this.

What do you mean by that?---Well, the confusion over – Mr Nyoni says he runs a perfect pharmacy. Kellerberrin has been arguing for a long time over it. Do you know what I mean?

304    I find that the reason Mr Mitchell advised the Shire in advance of the impending disconnection and signed the confirmation letter was to assist the Shire in demonstrating to the regulatory authorities, contrary to Mr Nyoni’s assertions, that Mr Nyoni did not run a “perfect pharmacy”. I reject entirely, as a concoction, Mr Mitchell’s evidence that he cooperated with the Shire because he was concerned about the storage of the pharmacy’s temperature sensitive drugs once the electricity was turned off at the pharmacy. Had this been Mr Mitchell’s concern he would have raised this concern with Mrs Nyoni before he turned the electricity off in the pharmacy. However, Mr Mitchell did not do so.

305    Further, at 134 of the transcript, Mr Mitchell gave the following evidence in relation to how the letter was produced:

And do you have offices in the city? In the town. Sorry. Do you have an office?---Do I have an office?

Yes?---No. Well, put it this way. I work – my brother-in-law has the steel manufacturing business.

Right?---And we’ve just got an office there that we hardly sit in. I mean, you could drive right from here down there now and see, “You don’t sit in it often,” because, like I said, most of my work is done from my van, from my work van, and - - -

You don’t have a computer and a printer in your work van, I take it?---God, no. No. I’m not that smart. Sorry.

So how did this letter come to be written on 14 October two thousand - - -?---No. Sorry. That, I did go back to the workshop and I would – I would obviously – I cannot remember, but I clearly would have – I’ve written it. It would have been at the workshop. That’s all I can say because I do not remember like doing it. It’s like a lot of things, stuff like – this is one of those - - -

You don’t remember this letter, how it was produced? ---Well, I’ve written it. I’ve been asked – put it this way. I’ve been asked to verify whether the power has gone off. Yes, I verified it.

What did you say – it went off. How did it go off? Was it faxed or - - -?---It – yes, I - - -

I mean, it’s addressed To Whom It Can Concern. So how did it go off?---It would have been handed in to the Shire.

306    Later, Mr Mitchell, at 137-138 of the transcript, gave the following evidence about the production of the letter:

So if you don’t recall any of that, how does this letter get produced on the - - -?---No. No. That was in between the – obviously, in between when we had done the – we were disconnecting it, and I had stated on that that it was around 3.32. So I had written in between there before that. So I must have taken this to the Shire then, which I don’t dispute. I had written - - -

Was the letter produced at the Shire offices perhaps?---This is what I don’t – I do not remember. It would have been. There’s no way it wouldn’t have been. I’ve walked in - - -

Because this is a very well typed letter?---Yes.

I don’t see it as being produced by someone who has got a steel fabrication workshop?---No. No. No. Well, they’re not smart. Yes.

So you think this letter may well have been produced by someone at the Shire?---I – that’s what I can’t recall, sir. I honestly can’t recall that. I – I know I signed it. I know it has been written. I do not recall whether we done it there or where. I do not recall that, and I’m sorry.

307    Mr Friend’s evidence was that he did not remember whether Mr Mitchell returned to the Shire offices after he had disconnected the electricity. When questioned about Mrs Nyoni’s evidence of seeing them together at the Shire offices, Mr Friend said that Mr Mitchell may have returned to the Shire offices and met with him but he did not recall specifically that he did.

308    In cross-examination, Mr Friend, at 717 of the transcript, gave the following evidence about the 14 October letter:

Were you aware that this letter was written and faxed approximately the say [sic] day if not the following day?---I – I assumed that Peter complied with the request of Tim van Bronswijk.

And did you assist us [sic] in writing that letter at all?---That’s the letter that’s shown at 266.

Yes?---No, that’s the first time I’ve seen that letter.

309    Mr Friend’s evidence that the first time he had seen the letter was when it was shown to him in the witness box, is highly implausible, and I reject that evidence. It is inconceivable that Mr Friend who had since January 2010, been engaged in a continuing campaign to cause the regulatory authorities to take disciplinary action against Mr Nyoni would not have examined the letter before it was dispatched from the Shire offices so as to ensure that Mr van Bronswijk’s request for confirmation of the disconnection of the pharmacy’s electricity, had been complied with.

310    I find that Mr Mitchell did attend the Shire offices after he had disconnected the electricity to the pharmacy. I also find that whilst he was at the Shire offices he and Mr Friend cooperated in composing the letter which was then produced and printed at the Shire offices, signed by Mr Mitchell and then forwarded by or under the direction of Mr Friend from the Shire to Mr van Bronswijk later in the afternoon of 14 October 2010.

311    I base these findings on the following considerations.

312    First, I accept the evidence of Mrs Nyoni that after Mr Mitchell had disconnected the electricity at the pharmacy, she closed the pharmacy and she and the locum pharmacist went for a walk and saw Mr Mitchell in the company of Mr Friend at the Shire offices.

313    Secondly, the letter of October 2014 itself is a well-formatted and professionally presented letter. I find that the letter is the product of a skilled and professional operator of a word processor program. I reject, entirely, Mr Mitchell’s initial evidence that this letter would have been produced by him at his brother-in-law’s steel manufacturing workshop and that he then handed the letter into the Shire offices. Indeed, Mr Mitchell later resiled from that evidence. At one stage, Mr Mitchell accepted during his evidence that the letter would have been produced at the Shire’s offices.

314    I find that Mr Friend’s intention in sending the email to Mr Bateman and Mr van Bronswijk advising of the impending disconnection of the electricity to the pharmacy, and in procuring the production and dispatch to Mr van Bronswijk of the letter of confirmation signed by Mr Mitchell, was to persuade the Pharmaceutical Council to consider taking disciplinary action against Mr Nyoni. The same is true in relation to the dispatch of the letter of confirmation to the Health Department. This action was part of a continuing campaign by Mr Friend and the Shire to persuade the various bodies which regulated the practice of a pharmacist, either to withhold benefits from, or impose sanctions against, Mr Nyoni so that Mr Nyoni would cease operating the Kellerberrin pharmacy and would be replaced by another pharmacist. That this was Mr Friend’s and the Shire Council’s objective from, at the latest, early January 2010, is obvious from the activities engaged in by Mr Friend and the Shire which are described in [90] to [137] above. The closing submissions of the second, third and fourth respondents, correctly acknowledge this to be the case.

Whether Mr Mitchell is liable in trespass

315    I find that Mr Mitchell on 14 October 2010, intentionally entered and remained on the premises of the Kellerberrin pharmacy without the consent of the person in possession of the premises and without lawful authority.

316    In his closing written submissions, Mr Mitchell contended that he was not liable because he had acted in the mistaken belief, induced by Mr Varney, that he was authorised to enter the pharmacy to disconnect the electricity. As mentioned above, however, the fact that Mr Mitchell acted in the mistaken belief that he had lawful authority to enter and remain on the pharmacy premises is no defence.

317    This is particularly so in the circumstances of this case where prior to attending the pharmacy premises, Mr Mitchell had not obtained written confirmation that Synergy required the disconnection of the electricity to the pharmacy, and then did not seek to do so, even after Mrs Nyoni challenged his right to disconnect the electricity and asked for written evidence of Synergy’s order that the electricity was to be disconnected.

318    Accordingly, I find that Mr Mitchell is liable to Mr Nyoni in trespass.

Whether Mr Friend and/or Mr McDonnell are liable as joint tortfeasors in relation to the trespass of Mr Mitchell

319    Mr Nyoni alleged that Mr Friend or Mr McDonnell or both authorised or directed Mr Mitchell to engage in the conduct which comprised the trespass, or acted in concert with Mr Mitchell in engaging in that conduct.

320    I deal first with the position of Mr Friend.

321    The actions of Mr Friend which are relied upon by Mr Nyoni, are that Mr Friend advised each of Mr van Bronswijk and Mr Bateman of the impending disconnection of the electricity supply to the pharmacy on 14 October 2010, and that he procured the production and dispatch of the letter of confirmation signed by Mr Mitchell.

322    In my view, neither of these actions by Mr Friend constituted authorising or directing Mr Mitchell to carry out the acts which comprised the tort of trespass in which Mr Mitchell engaged. It was the actions of Mr Varney which authorised and directed Mr Mitchell to enter the pharmacy and to carry out the further acts which comprise the trespass.

323    The fact that Mr Mitchell informed Mr Friend in advance that he was going to disconnect the electricity to the pharmacy and Mr Friend passed that information on to third parties, did not, in my view, amount to Mr Friend authorising or directing Mr Mitchell to engage in that conduct. By the time Mr Mitchell met Mr Friend, Mr Mitchell was already intent on carrying out the disconnection on the basis of the instructions he had received from Mr Varney. Further, the fact that Mr Friend subsequently was instrumental in the production and dispatch of the letter of confirmation post-dated the act of trespass and did not result in the authorisation or direction of the acts which comprised the trespass.

324    Further, the fact that Mr Mitchell informed Mr Friend in advance of his intention to disconnect the electricity to the pharmacy, did not give rise to common design between Mr Friend and Mr Mitchell to engage in the act of disconnection.

325    However, even if I am wrong in this respect and that circumstance does give rise to an inference of a common design, the question then is whether Mr Friend engaged in any act which assisted in the commission of the tort. It is apparent that Mr Friend’s conduct amounted to no more than advising third parties of Mr Mitchell’s intent to engage in a certain course of conduct. As I have already found, Mr Mitchell was, in any event, intent on embarking upon the course of conduct of which he advised to Mr Friend. Thus, applying the approach of the Supreme Court in Fish & Fish, it is the case that Mr Friend’s conduct in advising the third parties of Mr Mitchell’s intention to disconnect the electricity had no causative or contributory effect upon the conduct of Mr Mitchell in entering the pharmacy for the purpose of disconnecting the electricity.

326    Accordingly, I reject Mr Nyoni’s claim that Mr Friend is liable as a joint tortfeasor with Mr Mitchell in respect of Mr Mitchell’s trespass.

327    I also find that Mr McDonnell is not liable as a joint tortfeasor. Mr McDonnell had no relevant involvement in the disconnection of the electricity to the pharmacy on 14 October 2010.

328    Mr McDonnell was sent a copy of the email which Mr Friend forwarded to Mr van Bronswijk and Mr Bateman advising of the impending disconnection of the electricity supply to the pharmacy. Mr McDonnell took no further action on receipt of the email and, therefore, cannot be said to have authorised, directed or acted in concert with Mr Mitchell in Mr Mitchell’s conduct which gave rise to the trespass.

Damages

329    I now deal with the question of the quantum of damages to be awarded against Mr Mitchell.

330    In the case of Plenty v Dillon (1991) 171 CLR 635 (Plenty), two police officers entered the property of Mr Plenty in the course of attempting to serve a summons on Mr Plenty’s daughter and notices pursuant to the Juvenile Courts Act 1971 (SA) on Mr Plenty and his wife. The police officers did not have the express or implied permission to enter Mr Plenty’s land. Whilst the officers were on his land, Mr Plenty attempted to strike Mr Dillon, one of the officers, with a piece of wood and he was arrested and subsequently convicted of assaulting a police officer in the execution of his duty. Mr Plenty, however, brought a claim in trespass against the police officers. The High Court found that the police officers had trespassed upon Mr Plenty’s land.

331    Gaudron and McHugh JJ at 654-655, made the following observations as to the purpose of an award of damages in the case of a trespass:

In his judgment, the learned trial judge said that, even if a trespass had occurred, it was “of such a trifling nature as not to found [sic] in damages”. However, once a plaintiff obtains a verdict in an action of trespass, he or she is entitled to an award of damages. In addition, we would unhesitatingly reject the suggestion that this trespass was of a trifling nature. The first and second respondents deliberately entered the appellant’s land against his express wish. True it is that the entry itself caused no damage to the appellant’s land. But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff’s right to the exclusive use and occupation of his or her land. Although the first and second respondents were acting honestly in the supposed execution of their duty, their entry was attended by circumstances of aggravation. They entered as police officers with all the power of the State behind them, knowing that their entry was against the wish of the appellant and in circumstances likely to cause him distress. It is not to the point that the appellant was unco-operative or even unreasonable. The first and second respondents had no right to enter his land…If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights, particularly when the invader is a government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages.

332    In this case, the trespass occurred in respect of business premises during business hours. The consequence of Mr Mitchell’s actions was that, once the electricity to the pharmacy was disconnected, the pharmacy could no longer fill prescriptions of its customers and, therefore, lost the opportunity to earn monies during the period when the pharmacy was unable to engage in that activity. Further, Mr Mitchell’s trespass also had the consequence of potentially causing inconvenience to customers of the pharmacy by depriving them of the opportunity of having their prescriptions filled during the hours when the pharmacy was closed.

333    There was no specific evidence as to the daily takings of the pharmacy in October 2010 upon which to value the economic loss caused by Mr Mitchell’s trespass. In the circumstances, I will not make a specific award for this loss which, in my view, would undoubtedly have amounted to a very small sum, but I will have regard to the circumstance that the trespass was during working hours in respect of an operating business, in making the award of general damages.

334    Also, as is evident from letters written by the Health Department and the Pharmaceutical Council, Mr Nyoni suffered damage to his reputation because no one advised these bodies that the disconnection was not attributable to the fault of Mr Nyoni.

335    As I have found, Mr Mitchell advised the Shire in advance of the impending disconnection and cooperated with the Shire by signing the confirmation letter because he was willing to assist the Shire in reporting the disconnection to the regulatory authorities to show that, as he put it, Mr Nyoni did not run a “perfect pharmacy”. Further, Mr Mitchell did not, after he found out that the disconnection of the electricity to the pharmacy had not been authorised by Synergy, advise the Shire to that effect.

336    Accordingly, the reputational damage suffered by Mr Nyoni was a natural and probable consequence of Mr Mitchell’s conduct.

337    In my view, the general damages to be awarded to vindicate Mr Nyoni’s right to exclusive use and possession of Mr Nyoni’s pharmacy premises and his reputational damage should be $8,000.

338    However, another important circumstance in considering the quantum of the award of damages is that Mr Mitchell, in committing the trespass, acted in a highhanded and disrespectful manner. Mr Mitchell entered the pharmacy without having any written evidence from Synergy that he was authorised on its behalf to disconnect the electricity; and, notwithstanding, that Mrs Nyoni disputed his right to disconnect the electricity and asked him for written evidence that Synergy had authorised the disconnection of the electricity, he declined to contact Mr Varney or take any other steps to obtain such evidence. Rather, Mr Mitchell insisted on disconnecting the electricity without first satisfying himself and Mrs Nyoni that he was authorised to do so. Mr Mitchell knew that his actions were causing distress to Mrs Nyoni. In those circumstances, Mr Mitchell acted in a disrespectful and highhanded manner which caused distress.

339    Mr Mitchell gave evidence that when Mrs Nyoni was disputing his right to disconnect the electricity, he told Mrs Nyoni that she should telephone Western Power. Mrs Nyoni denied Mr Mitchell’s evidence in cross-examination. I prefer Mrs Nyoni’s evidence. However, even if that conversation did occur, the invocation to Mrs Nyoni to call Western Power is not to the point. It was incumbent upon Mr Mitchell as the person asserting a lawful authority to intrude on another person’s property, to satisfy himself that he was authorised to enter that property.

340    It is the case that aggravated damages are compensatory in nature, whereas exemplary damages are penal in nature, and that the highhanded and disrespectful conduct by MrMitchell was directed to Mrs Nyoni and not to Mr Nyoni; who was then in hospital. However, in New South Wales v Ibbett (2006) 229 CLR 638 at [31], Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ observed:

Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing. The interest of the plaintiff against invasion of the exclusive possession of the plaintiff extends to the freedom from disturbance of those persons present there with the leave of the plaintiff, at least as family members or as an incident of some other bona fide domestic relationship. The affront to such persons may aggravate the infringement of the right of the plaintiff to enjoy exclusive and quiet possession. (Footnotes omitted.)

341    Mrs Nyoni was Mr Nyoni’s wife and was present in the pharmacy “with the leave” of Mr Nyoni. The High Court’s observations apply.

342    In Plenty, on remittal to the Supreme Court of South Australia (1997) 194 LSJS 106), the Court awarded aggravated damages in the sum of $15,000.

In the case of TCN Channel 9 v Anning (2002) 54 NSWLR 333 (TCN Channel 9), Mr Anning had a large quantity of tyres on his rural property. The Environmental Protection Agency planned to conduct a search of the property and invited a reporter and cameramen from a television station to accompany the Environment Protection Authority’s officers on an inspection of Mr Anning’s property. The officers, reporter and the cameramen confronted Mr Anning on his property with cameras rolling. The New South Wales Court of Appeal found that the conduct of the reporter and the cameramen had been a trespass and awarded general damages in the sum of $25,000, and aggravated damages in the sum of $25,000.

343    As to aggravated damages, Spigelman CJ observed at 179 that:

The hurt to feelings, humiliation and affront to dignity experienced by the respondent was aggravated by the way in which the appellant acted in the course of its trespass.

It confronted the respondent with cameras rolling and indicated clearly that it was filming for the purpose of broadcasting to the public at large.

344    There are some distinguishing aspects between this case and the two cases referred to. In Plenty, the trespass was committed by two police officers, whereas Mr Mitchell was acting in a private capacity. Further, in TCN Channel 9, the cameramen and reporter acted on the basis that they intended to use the footage to broadcast the confrontation with Mr Anning to the public. No such circumstance prevailed in this case.

345    Nevertheless, in this case, Mr Mitchell was in a position to exert power over Mrs Nyoni and he acted in a manner which was highhanded and disrespectful.

346    In my view, there should be an award of $4,000 by way of aggravated damages to reflect the affront caused to Mrs Nyoni, and thereby to Mr Nyoni’s right to enjoy exclusive and quiet possession, by the way in which Mr Mitchell acted in carrying out the trespass.

347    I have in assessing the quantum of aggravated damages had regard to Mr Varney’s evidence that about a week or two after the disconnection, whilst he was in Mr Nyoni’s pharmacy to take a meter reading, he apologised to Mr Nyoni or both Mr and Mrs Nyoni (he was not sure if both were there at the time). However, I have discounted the significance of that apology in light of the fact that it was only made incidentally upon being in the pharmacy for another purpose, that it was not delivered immediately and Mr Varney did not prevent the reputational damage being suffered by Mr Nyoni, in the eyes of the regulatory authorities.

348    For the sake of completeness, I also observe that it was also an element of Mr Nyoni’s claim that the conduct of Mr Mitchell comprised an interference with Mr Nyoni’s contractual rights, namely, the contract between himself and Synergy for the supply of electricity by Synergy to the pharmacy.

349    However, Mr Nyoni did not lead any evidence as to the terms of his contract for the supply of electricity to the pharmacy.

350    I, accordingly, dismiss the claim which Mr Nyoni made against Mr Mitchell, Mr Friend, Mr McDonnell and the Shire in relation to the claim for interference with his contractual rights.

misfeasance in public office

351    Mr Nyoni alleged that the conduct of Mr Friend and Mr McDonnell in relation to the disconnection of the electrical power to the pharmacy by Mr Mitchell on 14 October 2010 amounted to the tort of misfeasance in public office. The conduct alleged by Mr Nyoni as comprising misfeasance in public office was as follows:

(1)    Each of Mr Friend and Mr McDonnell authorised or procured Mr Mitchell to engage in acts which comprised his trespass in respect of the pharmacy premises on 14 October 2010, or acted in concert with him in respect of those acts.

(2)    By sending the email advising of the imminent disconnection of the electricity to the pharmacy, and by assisting in the production and dispatch of the letter of 14 October 2010, signed by Mr Mitchell, each of Mr Friend and Mr McDonnell advised the Health Department and the Pharmaceutical Council that the electricity would be, or had been, disconnected, but did not advise those two departments that the disconnection was not attributable to any default by Mr Nyoni.

(3)    In other words, Mr Nyoni alleged that each of Mr Friend and Mr McDonnell communicated misleading information to the Health Department and the Pharmaceutical Council.

(4)    Each of the Health Department and the Pharmaceutical Council was misled into believing that the disconnection had occurred by reason of the fault of Mr Nyoni.

(5)    Each of Mr Friend and Mr McDonnell engaged in the conduct identified in subpara (1), (2) and (3) above with the intention of harming Mr Nyoni.

(6)    Mr Nyoni’s reputation was harmed by reason of the impugned conduct of Mr Friend and Mr Nyoni.

(7)    Each of Mr Friend and Mr McDonnell was at the relevant time a public officer.

352    I have already considered and dismissed the claim by Mr Nyoni that each of Mr Friend and Mr McDonnell authorised, procured or acted in concert with Mr Mitchell in his trespass on the pharmacy premises on 14 October 2010.

353    I now deal with Mr Nyoni’s contention that by communicating misleading information to the Health Department and the Pharmaceutical Council in relation to the disconnection of the electrical power to the Kellerberrin pharmacy on 14 October 2010, each of Mr Friend and Mr McDonnell engaged in the tort of misfeasance in public office.

354    Mr Nyoni contended that the communication with the Health Department and the Pharmaceutical Council occurred by Mr Friend sending the email advising of the impending disconnection of the electricity and by procuring the production and dispatch of the letter signed by Mr Mitchell advising of the disconnection.

355    I find that Mr McDonnell played no part in the production and dispatch of the email advising of the impending disconnection of the electricity, nor did he have any role in the production and dispatch of the letter signed by Mr Mitchell advising of the disconnection of the electricity.

356    I, accordingly, dismiss the claim of misfeasance in public office against Mr McDonnell.

357    However, I have already found that on 14 October 2010, Mr Friend wrote and sent the email to Mr Bateman and Mr van Bronswijk advising them of the impending disconnection of the electricity to the pharmacy. I have also found that Mr Friend procured the production and dispatch of the letter signed by Mr Mitchell later on 14 October 2010.

358    I have also found that Mr Friend’s intention in communicating with these authorities was to harm Mr Nyoni by causing the authorities to take action against Mr Nyoni as a consequence of the disconnection of the electricity. (See, [314] above.)

359    The question, therefore, is whether this conduct by Mr Friend constitutes the tort of misfeasance in public office.

360    The bounds of the tort of misfeasance in public office are still evolving. (See, Aronson M, “Misfeasance in Public Office: A Very Peculiar Tort” (2011) 35 Melbourne University Law Review 1-51.) However, there appears to be consensus that the tort will be committed where a public officer in purporting to exercise a public power or authority vested in him or her, acts maliciously by abusing that power or authority with the intent of harming the applicant (sometimes called “targeted malice”), or acts in the knowledge that he or she is acting beyond power or without legal authority, and with the knowledge that his or her conduct will harm the applicant.

361    It is common cause that on 14 October 2010, Mr Friend was the chief executive officer of the Shire and was a public officer.

362    However, Mr Friend contended that Mr Nyoni had not identified any power or authority that Mr Friend was purporting to exercise in communicating with the Health Department and the Pharmaceutical Council on 14 October 2010 as would attract the application of the tort of misfeasance in public office.

363    In Leerdam v Noori (2009) 255 ALR 553, Spigelman CJ observed:

[6]    …The identification of a power to act, which has or has not been exercised, is a necessary step in determining whether the conduct complained of occurred in purported performance of the functions of a public office. The relevant consideration is the link.

[7]    As Lord Bridge put it in Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 at 1240; [1989] 1 All ER 1025 at 1031:

…the tort of misfeasance in public office…must…involve an act done in the exercise or purported exercise by the police officer of some power or authority with which he is clothed by virtue of the office he holds…

364    In Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 at 1240 (Calveley), it was alleged that a police officer, conducting an investigation into the conduct of other police officers, had maliciously prepared a report which contained false information which the investigating officer then supplied to his superior officer. The House of Lords struck out a claim of misfeasance in public office because the pleaded case failed to identify any act done by the investigating officer in the exercise or purported exercise of a power vested in him as an investigating officer, which was infected by the malice pleaded against him.

365    In Calveley at 1240-1241, Lord Bridge observed:

It is evident that if a police officer investigating suspected criminal or disciplinary offences makes a false report to his superior officer which is defamatory of the suspect and that report is made maliciously so as to lose his status of qualified privilege, the suspect has a cause of action in tort against the author of the report. But the tort is defamation not misfeasance in public office since the making of a report is not a relevant exercise of power or authority by the investigating officer.

366    Also, in the case of Emanuele v Hedley (1998) 179 FCR 290 (Emanuele), the Full Court found that a public service officer who had made a false report regarding the applicant, had not in so doing, exercised any powers attaching to a public office.

367    In Emanuele at 300, the Full Court observed:

The report of the Fabrizioni conversation clearly cannot found an action for misfeasance in public office. Whether the report was true or false, its compilation and delivery were not actions done in the exercise of powers attaching to a public office.

368    In my view, the report of the impending disconnection of the electricity which Mr Friend made to Mr Bateman and Mr van Bronswijk and the communication of the letter signed by Mr Mitchell which Mr Friend procured, in my view, fall into the same category of conduct as the reports made in the Calveley and Emanuele cases.

369    The reports in this case were not made by Mr Friend to a superior employee but to a third party with an interest in receiving the reports but, in my view, that distinction is not material because in both cases, the reports were not furnished in the exercise of powers attaching to a public office.

370    Accordingly, I dismiss the claim made by Mr Nyoni that Mr Friend acted in misfeasance in public office.

MISLEADING OR DECEPTIVE CONDUCT – PUBLICATION OF MINUTES of SHIRE COUNCIL meeting

371    Mr Nyoni alleged that the Shire engaged in misleading or deceptive conduct by publishing the minutes of the meeting of the Shire Council of 16 February 2010, which contained false representations. Mr Nyoni alleged that the Shire’s conduct contravened s 52 of the Trade Practices Act 1974 (Cth) (Trade Practices Act) and s 10 of the Fair Trading Act 1987 (WA) (Fair Trading Act).

372    It is not in dispute that the minutes in question were published on the website of the Shire and that they could, therefore, be accessed by members of the public using the internet.

373    In 2010, Mr Griffiths was the deputy chief executive officer of the Shire. He was responsible for the production and publication of the Shire Council minutes of the meeting on 16 February 2010 on the Shire website.

374    The impugned extract of the minutes of the Shire Council meeting of 16 February 2010 read as follows:

MIN 11/10 MOTION – Moved Cr Forsyth 2nd Cr Bee

That Council endorses the actions of the Shire President and Chief Executive Officer in the non-Budget expenditure relating to the purchase of property at 96 Massingham Street Kellerberrin.

CARRIED 6/0

Agenda Reference:     11.1.8

Subject:    Lease of Council Property

Location:    96 Massingham Street Kellerberrin

Applicant:    Ms Lesley Ashburn

File Ref:    ASS-459

Disclosure of Interest:    Nil

Date:    2 February 2010

Author:    Darren Friend, Chief Executive Officer

BACKGROUND

An approach was made by the proponent in the first week of the New Year concerning whether Council had any suitable properties available for lease/rental for a commercial business (pharmacy). As a result of the discussion and in consultation with the Shire President, a decision was made to purchase 96 Massingham Street which will be available to lease to the proponent, should he be the successful applicant in acquiring the Pharmaceutical Benefits Scheme (PBS) licence for Kellerberrin. There are two applicants for the licence and a decision will be made via Medicare Australia in Canberra at the end of the month.

COMMENT

As a result of the current pharmacist in Kellerberrin selling his PBS licence prior to Christmas, Kellerberrin not only finds itself without a pharmacist who can dispense subsidised medication, the community may not have access to such a facility for several months to come.

Not only is this situation unsatisfactory, it is the culmination of a period of several years of below average service on the part of the pharmacist, Emson Nyoni to the residents of Kellerberrin. Councillors are well aware of the level of dissatisfaction among the community with complaints made on a regular basis to Council staff, other business owners and Councillors themselves concerning the operations of the pharmacy.

The irregular hours of opening, the dirty state of the shop and lack of stock and prescription drugs are regularly brought to the attention of Council staff by disgruntled members of the community.

Whilst Council can not be seen to favour one business over another, it is Council’s responsibility to ensure that its community receives access to essential services as part of its “good governance” requirements.

A draft letter of agreement to lease the premises has been drawn up and is attached for Council’s information. As part of the proponent’s application seeking the PBS licence for Kellerberrin, there was a requirement that the applicant had access to suitably zoned premises in which to operate a pharmacy. Subject to the proponent being the successful applicant for the PBS licence, issued through Medicare Australia, the premises would be leased for a minimum of twelve month during which time a suitable commercial property would be purchased to house the pharmacy. In addition, a suitable private dwelling would be sourced to accommodate the pharmacist and his/her family.

375    Section 52 of the Trade Practices Act reads as follows:

(1)    A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2)    Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1).

376    Section 10 of the Fair Trading Act reads as follows:

(1)    A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2)    Nothing in this Part shall be taken as limiting by implication the generality of subsection (1).

Whether the Shire is a “corporation” for the purposes of s 52 of the Trade Practices Act

377    The Shire in its closing submissions said that it would not press the issue of whether the Shire was a “trading corporation”:

378    In adopting this stance, the Shire accepted that because the minutes of 16 February 2010 had been published on its website, the prohibition in s 52 of the Trade Practices Act applied to the Shire, as a corporation, by reason of the extended operation of the Trade Practices Act effected by s 6(3) of the Trade Practices Act.

379    Further, the Shire accepted that the claim under s 10 of the Fair Trading Act was not predicated on the Shire being a “trading corporation”.