FEDERAL COURT OF AUSTRALIA

Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application filed on 27 November 2014 is dismissed.

2.    The applicant is to pay the first and third respondents’ costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

SIOPIS J:

1    In 2011, the applicant, Mr Emson Nyoni, owned and conducted a pharmacy business located in Kellerberrin, Western Australia. The pharmacy business was named the Kellerberrin Pharmacy.

2    At the pharmacy premises, Mr Nyoni stored and dispensed drugs which were named in Sch 8 to the now repealed Poisons Act 1964 (WA). These are drugs of addiction.

3    At all material times, a pharmacist carrying on business as such in Western Australia, required a licence issued under the Poisons Act to handle and store Sch 8 drugs. There were in force, at the material times, the Poisons Regulations 1965 (WA) made under the Poisons Act, which prescribed the manner in which a pharmacist was to store and record in a register dealings in respect of Sch 8 drugs.

4    In 2011, officers of the Department of Health of Western Australia (Department of Health) conducted an audit of Mr Nyoni’s pharmacy premises.

5    As a consequence of matters arising from that audit, Mr Nyoni was charged in the Merredin Magistrates Court with six offences under the Poisons Act and Poisons Regulations.

6    Charges 1 and 2 alleged that Mr Nyoni had, contrary to reg 44(4) of the Poisons Regulations, failed to maintain the register such that the quantity of Oxynorm 5 mg capsules and Durogesic 25 mcg per hour patches procured by him was clearly apparent.

7    Charges 3 and 4 alleged that Mr Nyoni had failed to make an inventory of drugs of addiction held in stock at an interval of not more than one month and had not recorded the inventory in the register.

8    Charges 5 and 6 alleged that Mr Nyoni had failed to keep the safe containing the Sch 8 drugs locked and had failed to keep the key to the safe in his immediate personal possession.

9    There was no suggestion in the audit or in the charges that Mr Nyoni had been self-medicating by using the drugs of addiction for his own use; or that he was otherwise addicted to or had abused Sch 8 drugs.

10    On 23 January 2013, Mr Nyoni, having pleaded not guilty to the charges, was convicted in the Merredin Magistrates Court on all charges. Mr Nyoni was fined a total of $14,000 and ordered to pay costs of $2,500.

11    On 13 March 2013, Mr Nyoni entered into a written contract for the sale of the Kellerberrin Pharmacy to Mr Chee Koon Hee for $255,000 and the land on which the pharmacy was located to entities associated with Mr Hee for $60,000. Mr Nyoni subsequently refused to perform the contract and continued to operate the pharmacy business. The purchaser was required to seek an order for specific performance – which was made on 21 February 2014 (see [47] and [49] below). Mr Nyoni ceased operating the Kellerberrin Pharmacy business in April 2014.

12    On 12 April 2013, the delegate of the chief executive officer of the Department of Health, Dr Revle Bangor-Jones, sent Mr Nyoni a letter advising him that pursuant to reg 43A of the Poisons Regulations, the authority he had by s 23(2) of the Poisons Act in relation to Sch 8 drugs was revoked effective from 1 May 2013.

13    On the same day, Dr Bangor-Jones wrote to the third respondent, the Australian Health Practitioner Regulation Agency (AHPRA) in Perth. The letter was addressed to Dr Sharon Gaby as “Manager, Conduct, Health and Performance” at AHPRA. The letter stated that according to the AHPRA website, Mr Nyoni was a registered pharmacist. The letter went on to say:

Mr Nyoni is the Pharmacist Licence holder for Kellerberrin Pharmacy under the Poisons Act 1964. On 23 January 2013, Mr Nyoni was found guilty in the Merredin Magistrates Court of breaches of the Poisons Act and Regulations pertaining to Schedule 8 drugs.

A notice has been issued by the Delegate of the Chief Executive Officer of Health under the Poisons Regulations 1965, Regulation 43A revoking Mr Nyoni’s personal authority as a registered pharmacist under Section 23(2)(a) of the Act to manufacture, possess, sell or supply Schedule 8 poisons. A copy of this notice is attached.

As allowed for under Section 4D of the Act, I hereby give notice to the Pharmacy Board responsible for the registration of Mr Nyoni under the Health Practitioner Regulation National Law (Western Australia).

14    On 26 April 2013, in response to the above-mentioned notification in respect of Mr Nyoni, there was a meeting of the immediate action committee (IAC) of the first respondent, the Pharmacy Board of Australia (Board). This meeting took place by telephone and lasted nine minutes. The members of the IAC were Mr Trevor Draysey, who chaired the meeting, and Board members Mr Gerard McInerney and Ms Karen O’Keefe, who was a lawyer. Also in attendance were Ms Pamela Malcolm, Director Notifications and Legal Services (WA) and Mr Daniel Spencer – a case manager employed by AHPRA.

15    The IAC decided that Mr Nyoni’s conduct did not pose a serious risk to persons such that immediate action was required to protect public health or safety.

16    The IAC also decided to refer Mr Nyoni for investigation under s 160(1) of the Health Practitioner Regulation National Law (the National Law) as applied in Western Australia by the Health Practitioner Regulation National Law (WA) Act 2010. That subsection states:

(1)    A National Board may investigate a registered health practitioner or student registered by the Board if it decides it is necessary or appropriate —

(a)    because the Board has received a notification about the practitioner or student; or

(b)    because the Board for any other reason believes —

(i)    the practitioner or student has or may have an impairment; or

(ii)    for a practitioner —

(I)    the way the practitioner practises the profession is or may be unsatisfactory; or

(II)    the practitioner’s conduct is or may be unsatisfactory;

or

(c)    to ensure the practitioner or student —

(i)    is complying with conditions imposed on the practitioner’s or student’s registration; or

(ii)    is complying with an undertaking given by the practitioner or student to the Board.

17    Mr Spencer was appointed as the investigator under s 163 of the National Law.

18    Also on 26 April 2013, AHPRA sent Mr Nyoni a letter headed “Notice of receipt of notification and investigation”. The letter was signed by Ms Malcolm, described as “Special Counsel (National)” and “Director, Notifications and Legal services (WA)” and by Mr Spencer, described as “Investigator”.

19    The letter stated that AHPRA received and managed notifications (complaints) about registered health practitioners on behalf of the Board.

20    The letter stated further that on 18 April 2013 AHPRA had received a notification from the Department of Health in relation to Mr Nyoni. The letter went on to say that on 26 April 2013 the Board had decided to investigate Mr Nyoni’s performance under s 160 of the National Law and that Mr Spencer had been appointed as the investigator to gather information to help the Board make an informed decision. The letter then went on to say:

The issue currently identified is that you were found guilty in the Merredin Magistrates Court of breaches of the Poisons Act 1964 and Poisons Regulations 1965 in relation to your prescribing of Schedule 8 medications.

21    The letter also stated that Mr Nyoni would be provided with an opportunity to respond to the issues as the investigation progressed.

22    On 22 May 2013, Mr Nyoni commenced a proceeding in this Court against 12 respondents, one of whom was the chief executive officer of the Department of Health. Among the relief sought by Mr Nyoni was an order revoking or suspending the notice revoking his authority under s 23(2)(a) of the Poisons Act in relation to Sch 8 drugs. Mr Nyoni also sought an interlocutory injunction in support of that relief.

23    On 7 June 2013, AHPRA sent Mr Nyoni another letter advising him it had been decided that his performance should be investigated under s 160 of the National Law. This letter was signed by Mr Scott Anderson described as “Acting Manager Conduct, Health & Performance” and Mr Spencer, described as “Solicitor, Legal Adviser – Notifications”.

24    In that letter the issue identified was stated to be as follows:

[Y]ou were issued with a notice under Regulation 43A of the Poisons Regulations 1965 (Regulations) revoking your personal authority as a registered pharmacist to manufacture, possess, sell or supply Schedule 8 medications after being found guilty in the Merredin Magistrates Court of breaches of the Poisons Act 1964 (WA) and the Regulations.

25    The letter repeated that Mr Spencer had been appointed as the investigator to gather information to help the Board make an informed decision. The letter went on to state that Mr Nyoni was required by 28 June 2013 to give a written response to the issue identified in the letter.

26    On 10 June 2013, Gilmour J dismissed Mr Nyoni’s application for an interlocutory injunction restraining the revocation of Mr Nyoni’s authority under s 23(2)(a) of the Poisons Act to manufacture, possess, sell or supply Sch 8 drugs (Nyoni v Chee Koon Hee [2013] FCA 701).

27    On 16 July 2013, Mr Nyoni sent a letter, addressed to Mr Spencer at AHPRA, which responded to the AHPRA letter of 7 June 2013.

28    In the letter Mr Nyoni alleged that the Shire of Kellerberrin (the Shire) had engaged in attempts to undermine his pharmacy and that a former officer of the Department of Health had acted in collusion with the Shire. Mr Nyoni also said that a Department of Health inspector had worked in collusion with the Shire and had “fabricated a prosecution notice based on fabricated evidence”. Mr Nyoni also said that he was pursuing claims in this Court and the Supreme Court of Western Australia (the Supreme Court). Mr Nyoni concluded his letter by stating:

My submissions in the current deliberations in the Federal Court of Australia and the Supreme Court of Western Australia vigorously contend that an element or some elements in the Department of Health, maliciously fabricated evidence to procure a false conviction in the Merredin Magistrates Court, on the basis of vengeance and hatred and no regard whatsoever to the Poisons Regulations 1965. I, therefore, implore AHPRA not to record or act on this frivolously obtained notation and await a proper determination in accordance with the law in the interests of justice.

29    On 26 July 2013, EM Heenan J in the Supreme Court dismissed Mr Nyoni’s application for leave to appeal against his Magistrates Court convictions but granted Mr Nyoni leave to appeal against sentence, and EM Heenan J reduced the aggregate fine from $14,000 to $10,000.

30    Before 3 September 2013, Mr Spencer prepared an investigation report in relation to Mr Nyoni’s conduct, for consideration at a meeting of the notifications committee of the Board which was due to be held on 3 September 2013. The investigation report stated:

1.    Issues

Offence – Drugs and poisons offence: Mr Emson Nyoni (Practitioner) was found guilty in the Merredin Magistrates Court of breaches of the Poisons Act 1964 (Act) and Poisons Regulations 1965 (Regulations) in relation to his storage and documentation of Schedule 8 medication.

The Practitioner has been issued with a notice under Regulation 43A of the Regulations revoking the Practitioner’s personal authority as a registered pharmacist, to manufacture, possess, sell or supply Schedule 8 medications (Notice).

The Notice was effective from 24 May 2013.

2.    Recommendation

It is recommended that the Notifications Committee of the Pharmacy Board of Australia (Committee):

a.    take action under Division 10 of the Health Practitioner Regulation National Law (the National Law) and propose to:

i.    caution the Practitioner under section 178(2)(a) of the National Law, with the suggested wording of the caution being –

The Practitioner is cautioned to ensure that the Practitioner complies with the Poisons Regulations 1965 (WA) and the Board’s “Guidelines for dispensing of medicines” with respect to the storage and documentation of Schedule 8 medication.

ii.    impose the following conditions on the Practitioner’s registration under section 178(2)(c) of the National Law:

i.    The Practitioner is prohibited from taking or self administering Schedule 8 drugs, save for those that may be prescribed by a treating medical practitioner.

ii.    The Practitioner is prohibited from manufacturing, prescribing, possessing, supplying or selling Schedule 8 drugs.

iii.    The Practitioner is prohibited from administering Schedule 8 drugs, save in an emergency. Where in an emergency the Practitioner has personally administered Schedule 8 drugs to any person, the Practitioner must notify the Board in writing of the emergency within 24 hours, and provide such details relation to the emergency as are required by the Board.

iv.    The Practitioner is to undergo an audit of his practice (Audit) conducted by a person appointed by the Board (Appointee).

v.    The first Audit will be conducted between three and six months after the date that these conditions are imposed (First Audit).

vi.    Subsequent Audits may be undertaken at intervals of no less than three months from the date of the First Audit.

vii.    The costs of any Audit will be borne by the Practitioner.

viii.    Following an Audit, the Appointee will prepare a report (Report) and provide it to the Board, a copy of which is to be disclosed to the Practitioner within two months of the Report being received by the Board.

ix.    The parameters for the Report will be as set by the Board.

b.    decide a review period of three years in relation to the proposed conditions under section 178(3) of the National Law

c.    invite the Practitioner to show cause in relation to the proposed action under section 179(1)(b) of the National Law, and

d.    if deemed appropriate, refer the Practitioner for a performance assessment under section 170 of the National Law.

(Original emphasis.)

31    The notifications committee of the Board duly met on 3 September 2013. The meeting was conducted by telephone. The meeting was again chaired by Mr Draysey. There were four other members of the notifications committee present; one declared a conflict of interest and recused himself. The minutes of that meeting record that Dr Gaby and Mr Anderson were present for the agenda item dealing with Mr Nyoni’s conduct. The minutes record that the notifications committee accepted the recommendations made by Mr Spencer. That is to say, the notifications committee proposed to caution Mr Nyoni and it proposed to impose the conditions identified by Mr Spencer on Mr Nyoni’s registration as a pharmacist.

32    On 18 September 2013, Gilmour J dismissed Mr Nyoni’s application for an order revoking the notice from the delegate of the chief executive officer of the Department of Health revoking Mr Nyoni’s authority under s 23(2)(a) of the Poisons Act in relation to Sch 8 drugs. Gilmour J dismissed the application on the basis that the Court did not have jurisdiction to hear and determine that claim.

33    By a letter dated 15 October 2013, AHPRA invited Mr Nyoni to make submissions about the notifications committee’s proposal that he be cautioned and that the conditions set out in Mr Spencer’s investigation report (see [30] above) be imposed upon his registration as a pharmacist.

34    Mr Nyoni responded to AHPRA’s letter, by letters dated 4 November 2013 and 19 November 2013. Mr Nyoni opposed the proposed course of action identified in AHPRA’s letter on the basis that the issues relating to the convictions before the Merredin Magistrates Court had not been finally determined. Mr Nyoni’s explanation was that the convictions were procured by fabricated evidence as part of a conspiracy currently being litigated in the Federal Court. As such, said Mr Nyoni, the imposition of the conditions would result in “irreparable harm” which could not be cured even if he obtained a positive outcome in the Federal Court. Mr Nyoni did not make any submission to the effect that, in any event, the first condition should not be imposed because it was defamatory of him in suggesting that he had abused Sch 8 drugs.

35    The Board’s notifications committee met again on 26 November 2013. That meeting was chaired by Mr Draysey. The meeting was convened by telephone and was attended by committee members Mr Brett Simmonds, Mr McInerney and Ms O’Keefe. The notifications committee decided to caution Mr Nyoni in the terms originally proposed by Mr Spencer; and to impose the conditions recommended in the investigation report prepared by Mr Spencer. However, the notifications committee amended slightly the terms of the first condition proposed by Mr Spencer. Accordingly, the first condition imposed by the notifications committee was:

[Mr Nyoni] is prohibited from taking or self administering Schedule 8 drugs, save for those that may be legally prescribed for him.

36    Otherwise the conditions imposed were in the terms originally proposed by Mr Spencer. The notifications committee also imposed a three-year review period in relation to the conditions, as recommended by Mr Spencer.

37    By a letter dated 12 December 2013, AHPRA advised Mr Nyoni of the decision made by the notifications committee of the Board on 26 November 2013.

38    That letter also advised Mr Nyoni that he had a right to appeal against the decision of the notifications committee to the State Administrative Tribunal within 28 days of the notification of the decision. Mr Nyoni did not within the 28 day period commence any proceeding in the State Administrative Tribunal challenging the imposition of the conditions upon his registration attendant upon the decision of the notifications committee.

39    On 16 December 2013, the conditions imposed by the notifications committee of the Board on Mr Nyoni’s registration as a pharmacist were recorded in the national register pursuant to s 222 of the National Law.

40    Section 222 of the National Law provides:

(1)    Each of the following National Boards must, in conjunction with [AHPRA] —

(a)    keep the public national register listed beside that Board in the following Table that is to include the names of all health practitioners, other than specialist health practitioners, currently registered by the Board; and

(b)    if Divisions are listed beside the public national register in the Table, keep the register in a way that ensures it includes those Divisions.

(2)    In addition, each National Board must keep a public national register that is to include the names of all health practitioners, other than specialist health practitioners, who were registered by the Board and whose registration has been cancelled by an adjudication body.

41    Section 225 of the National Law provides that specified information is to be recorded in the national register in respect of each registered health practitioner.

42    Section 225(k) requires the national register to record:

(k)    if a condition has been imposed on the practitioner’s registration or the National Board has entered into an undertaking with the practitioner –

(i)    if section 226(1) applies, the fact that a condition has been imposed or an undertaking accepted; or

(ii)    otherwise, details of the condition or undertaking;

43    Section 226(1), which concerns the circumstances under which a board may decide not to record information in the national register, did not apply in this case.

44    Section 228(1) of the National Law provides that:

(1)    [AHPRA] —

(a)    must keep each register kept by a National Board…open for inspection, free of charge, by members of the public —

(i)    at its national office and each of its local offices during ordinary office hours; and

(ii)    on [AHPRA’s] website;

and

(b)    must give a person an extract from the register on payment of the relevant fee; and

(c)    may give a person a copy of the register on payment of the relevant fee.

(2)    [AHPRA] may give a person a copy of the register under subsection (1)(c) only if [AHPRA] is satisfied it would be in the public interest to do so.

(3)    [AHPRA] may waive, wholly or partly, the payment of a fee by a person under subsection (1)(b) or (c) if [AHPRA] considers it appropriate in the circumstances.

45    Also on 16 December 2013, the conditions attaching to Mr Nyoni’s registration were published on the free, publicly accessible version of the national register on AHPRA’s website.

46    By a letter dated 30 December 2013, AHPRA drew Mr Nyoni’s attention to a provision in the National Law, which would enable him to apply to change or remove the conditions on his registration during the review period if there had been a material change in his circumstances.

47    On 21 February 2014, Acting Master Gething of the Supreme Court made an order that Mr Nyoni specifically perform the contract which he had entered into with Mr Chee Koon Hee for the sale of the Kellerberrin Pharmacy (see [11] above).

48    On 4 April 2014, the Court of Appeal of the Supreme Court refused Mr Nyoni’s application for leave to appeal from, and dismissed his appeal against, the decision of EM Heenan J referred to at [29] above (Nyoni v Murphy [2014] WASCA 70).

49    On 17 April 2014, the Court of Appeal of the Supreme Court dismissed an appeal against an order of Acting Master Gething for specific performance made on 21 February 2014 (Nyoni v Hee [2014] WASCA 84). Mr Nyoni then ceased operating the Kellerberrin Pharmacy business.

50    By a letter dated 5 May 2014, Dr Andrew Robertson of the Department of Health notified AHPRA that Mr Nyoni appeared to have been supplying Sch 8 drugs between November 2013 and April 2014 in contravention of the second condition imposed by the Board on 26 November 2013. The letter was addressed to Dr Gaby.

51    On 21 May 2014, AHPRA wrote a letter to Mr Nyoni seeking his response to the subject-matter of the notification from the Department of Health in respect of the supply of Sch 8 drugs while working at the Kellerberrin Pharmacy between November 2013 and April 2014 despite a condition imposed on his registration prohibiting this conduct. The letter stated that Ms Ainsley Rodgers had been appointed investigator and was signed by Mr Anderson and Ms Rodgers.

52    On 26 June 2014, AHPRA wrote another letter to Mr Nyoni noting that he had not provided any response to AHPRA’s previous letter of 21 May 2014 and giving Mr Nyoni until 11 July 2014 to respond. This letter was signed by Dr Gaby and Ms Rodgers. Mr Nyoni responded to that letter by seeking an extension of time. That extension of time was subsequently granted.

53    On 22 August 2014, Mr Nyoni provided a response to the AHPRA letters referred to above.

54    Mr Nyoni’s response was that he had not been supplying Sch 8 drugs between November 2013 and April 2014 without authorisation as alleged because he had in March 2013 taken legal action challenging the revocation of his Sch 8 licence.

55    It appears that Mr Nyoni’s response was based on the unfounded assumption that because he had taken legal action in respect of the revocation of his Sch 8 licence, that the revocation was thereby suspended and that, consequently, the conditions imposed by the Board on 26 November 2013 had not taken effect.

56    Further in that letter, under the heading “Other information I consider relevant”, Mr Nyoni went on to refer to the conditions imposed by the Board on 26 November 2013 and stated as follows:

The Condition that You are prohibited from taking or self administering Schedule 8 drugs, save for those that may be legally prescribed for you placed on my AHPRA registration record and available to the public at large and to the world is particularly provocative and insensitive because I have never been the subject of taking or self administering Schedule 8 drugs, save for those that may be legally prescribed for you placed [sic]. I also add that I have never, do not and will never engage in that defamatory and callous characterisation of my personality the Pharmacy Board has invented against me. Just going back a little bit, the allegation, which I refute and categorically deny, is that I breached inventory recordings in my DD register and that the safe had been allegedly open. No drugs have ever been found missing or in excess after the dispensing records were matched with wholesale supplies. To suggest to the worls [sic] that AHPRA has imposed conditions stopping me from self administering S8 drugs is absurd and incredibly unjust. The harm caused has totally ruined me and I do not understand what the real motive is behind this Condition other than to cause irreparable harm and character assassination on a world scale. I will repeat this again that you remove this baseless insult off my record. Furthermore, there is no basis for any additional or new conditions on my record based on the untrue imutatiosn [sic] of your conditions.

(Original emphasis.)

57    Notwithstanding Mr Nyoni’s complaints in his letter of 22 August 2014 that the first condition was defamatory, the Board and AHPRA did not until 24 July 2015 remove the first condition from the conditions imposed on Mr Nyoni’s registration on the Board’s national register published on AHPRA’s website. Thus, the conditions remained unchanged on the AHPRA website from 16 December 2013 to 24 July 2015.

58    Following Mr Nyoni’s letter of 22 August 2014, the investigator prepared an investigation report for the notifications committee for its meeting to be held on 30 September 2014. The investigation report related to the Department of Health notification that Mr Nyoni had allegedly been supplying Sch 8 drugs between November 2013 and April 2014 in contravention of the conditions imposed upon his registration preventing him from supplying Sch 8 drugs.

59    The investigation report referred to the fact that AHPRA had sought Mr Nyoni’s response in relation to the 5 May 2014 notification by the Department of Health. The investigation report also contained under the heading “Summary of Practitioner’s response” the following:

The Practitioner denies that he has been supplying Schedule 8 medications between November 2013 and April 2014, at the Pharmacy, despite the condition imposed on his registration.

The Practitioner objects to the condition placed on his registration that prohibits him from “taking or self administering Schedule 8 drugs”. The Practitioner states that this condition is a “defamatory and callous characterisation of [his] personality that the Pharmacy Board has invented against [me]”.

The Practitioner further denies that he breached inventory recordings in the Register, or that the safe had been left open. The Practitioner states that no drugs have ever been found missing from the Pharmacy, and that the dispensing records matched the wholesale supplies.

The Practitioner requests the removal of this condition.

The Practitioner states that each of the legal proceedings that he has been involved with, have had the effect of “suspending or revoking” the Notice to revoke his license, as well as the conditions imposed by the Board on 28 [sic] November 2013.

The Practitioner states that the “legal sequence of events” cover the period in which he was dealing with Schedule 8 medication.

(Original emphasis.)

60    The investigation report also contained as an attachment a copy of Mr Nyoni’s letter of 22 August 2014, which is referred to at [53]-[56] above, which contained the paragraph complaining that the first condition was defamatory, and denying that he ever took or self-administered Sch 8 drugs which had not been legally prescribed for him.

61    The author of the investigation report went on to state:

The Practitioner appears to have behaved in a way that constitutes professional misconduct, in that he proceeded to ignore the conditions imposed upon his registration, as well as the Notice of revocation of his Schedule 8 licence.

It is, therefore, recommended that the Practitioner be referred to the SAT.

62    The investigation report was considered by the notifications committee of the Board at its meeting on 30 September 2014.

63    Mr Draysey was an apology at that meeting. The meeting was chaired by Mr Simmonds and attended by Mr McInerney and Ms O’Keefe, each of whom had been present at the meeting of the notifications committee which had imposed the conditions, including the first condition, on Mr Nyoni’s registration on 26 November 2013.

64    The meeting was convened by teleconference and the minutes record that the meeting commenced at 10:00 am and concluded at 12:25 pm. Accordingly, the meeting was approximately 2½ hours long. The minutes of the meeting record at para 8.2.2 that the notifications committee received and considered an investigation report concerning the Department of Health notification in respect of Mr Nyoni’s alleged supply of Sch 8 drugs during the period November 2013 to April 2014 in contravention of the second condition imposed on his registration.

65    The minutes go on to record that the notifications committee decided to recommend to the Board that the Board form a reasonable belief under s 193(1)(a)(i) of the National Law that Mr Nyoni had behaved in a way that constituted professional misconduct and refer the matter to the State Administrative Tribunal.

66    The notifications committee did not remove the first condition nor did it make any recommendation that any action be taken in relation to the removal of the first condition.

67    In October 2014, Mr Nyoni started applying for positions as a pharmacist and other jobs. This application process continued for some time thereafter. I will deal in greater detail with the endeavours in which Mr Nyoni engaged in order to obtain further employment later in these reasons.

68    On 21 November 2014, the Board held a meeting at which it adopted the recommendation of the notifications committee and determined that it had formed a reasonable belief that Mr Nyoni had behaved in a way that constituted professional misconduct; and determined that the matter was to be referred to the State Administrative Tribunal.

69    On 27 November 2014, Mr Nyoni commenced this proceeding.

70    On 8 January 2015, AHPRA filed an application in the State Administrative Tribunal in relation to the May 2014 notification consequent upon the Board’s decision of 21 November 2014.

71    By letter dated 13 April 2015, AHPRA again informed Mr Nyoni that he had a right to appeal to the State Administrative Tribunal in respect of the conditions imposed on his registration. The letter further stated that although an appeal against the decision was now out of time neither it nor the Board would object on that basis if he decided to appeal against the decision. However, following the receipt of this letter, Mr Nyoni did not appeal to the State Administrative Tribunal in respect of the imposition of the conditions.

72    On 19 June 2015, there was a meeting of the Board. Among the members present at that meeting were Mr Draysey, Mr Simmonds, Mr McInerney and Ms O’Keefe, each of whom had been present at the notifications committee meeting on 26 November 2013 which had decided to impose the conditions on Mr Nyoni’s registration.

73    At that meeting, the Board decided to abridge the three year review period in relation to the conditions imposed on Mr Nyoni’s registration to a period of 18 months - with the effect that the period expired on 25 May 2015 - being a date which preceded the date of the meeting. The Board then decided to propose to change conditions one and two imposed on Mr Nyoni’s registration on 26 November 2013 from the existing conditions to the following conditions:

(i)    The Practitioner must comply with any restrictions on his poisons licence as imposed by any relevant authority in any State or Territory.

(ii)    The Practitioner is prohibited from manufacturing, dispensing, possessing, supplying or selling Schedule 8 drugs.

74    The Board agreed to provide Mr Nyoni with written notice of the proposed changes to the conditions and to invite Mr Nyoni to make a submission as to why the conditions should not be changed within 30 days of the receipt of the notice. The notice was duly given to Mr Nyoni and Mr Nyoni did not make a substantive response to that notice.

75    In due course, a meeting of the Board was held on 24 July 2015 at AHPRA’s national office in Bourke Street, Melbourne. Present at that meeting were Mr Draysey, Mr Simmonds, Mr McInerney and Ms O’Keefe. The Board resolved to change conditions one and two in accordance with [73] above.

76    On 24 July 2015, AHPRA sent an emailed letter to Mr Nyoni advising him of the changes to the conditions on his registration.

77    Further, on 24 July 2015, the entry for Mr Nyoni in the national register was amended to reflect the changes determined by the Board at its meeting that day.

THIS PROCEEDING

78    As mentioned, on 27 November 2014, Mr Nyoni commenced this proceeding by way of an originating application and a supporting affidavit.

79    Mr Nyoni sought, amongst other relief, injunctive relief in the form of the removal of the conditions imposed by the Board on 26 November 2013, damages based upon an alleged contravention of s 18 of the Australian Consumer Law (ACL) being Sch 2 to the Competition and Consumer Act 2010 (Cth) (the CCA) and damages for defamation and malicious falsehood including “damages for lost earnings” and “loss of reputation”.

80    The application was initially brought against three respondents being the Board, the chief executive officer of the Department of Health and AHPRA.

81    However, prior to the trial of the application the chief executive officer of the Department of Health applied for the proceeding against him to be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

82    On 25 October 2016, I allowed the chief executive officer’s application and summarily dismissed the proceeding against him.

83    Further, I accepted that the facts and circumstances outlined in Mr Nyoni’s supporting affidavit gave rise to three potentially arguable causes of action against the Board and AHPRA (also referred to hereafter, on occasions, as “the respondents”) in respect of the publication of the first condition. To facilitate the trial of those causes of action, I stated several issues for trial which relevantly arose within the ambit of those three potential causes of action. The potential causes of action were the following:

(a)    a claim based on misleading or deceptive conduct in contravention of s 18 of the ACL;

(b)    defamation; and

(c)    injurious falsehood.

84    The issues were stated after AHPRA and the Board had an opportunity to include within the statement of issues any issue which each respondent considered material in opposition to Mr Nyoni’s claims. As it has transpired, it is unnecessary to deal with all the stated issues.

the witnesses

Mr Emson Nyoni

85    Mr Emson Nyoni gave evidence and was cross-examined. Mr Nyoni read an affidavit of 12 January 2015. Annexed to the affidavit of 12 January 2015 was a further affidavit of 26 November 2014 upon which Mr Nyoni also relied.

86    In the affidavit of 26 November 2014, Mr Nyoni said that in relation to all of the offences in respect of which he had been found guilty in the Magistrates Court, no drugs were ever found missing or exceeding the audited quantities. Mr Nyoni was not cross-examined on those statements.

87    Mr Nyoni also read an affidavit of 17 April 2015. This affidavit dealt with Mr Nyoni’s attempts to secure further employment. There were several annexures evidencing the attempts by Mr Nyoni to secure further employment. In addition, there were annexures which referred to Mr Nyoni’s default in paying accounts and outstanding invoices. There was also an annexure comprising a report by a clinical psychologist, Ms Karen Goodall-Smith. That report by Ms Goodall-Smith refers to the materials which she took into account in expressing her opinion in relation to Mr Nyoni’s mental health. However, those materials did not include any reference to the imposition of the conditions by the Board or the publication thereof on the AHPRA website.

88    I will deal in more detail with Mr Nyoni’s evidence about his attempts to obtain further employment later in these reasons.

89    Mr Nyoni also relied on an affidavit of 7 August 2017. At para 85 of that affidavit Mr Nyoni deposed that in all his years as a pharmacist, he had never taken Sch 8 drugs without a prescription from a medical practitioner. Mr Nyoni was not cross-examined on that statement. Nor is it contended by AHPRA and the Board that Mr Nyoni has engaged in such conduct.

90    There were numerous objections taken to Mr Nyoni’s affidavit of 7 August 2017 which were upheld. The objections which were upheld were recorded and distributed to the parties.

Mr Daniel Spencer

91    Mr Daniel Spencer gave oral evidence and was cross-examined. Mr Spencer was called to give evidence by Mr Nyoni pursuant to a subpoena issued on the application of Mr Nyoni. Mr Spencer was at all material times an officer of AHPRA. As mentioned above, Mr Spencer, in his capacity as investigator for the Board, prepared the recommendation which went to the notifications committee for the imposition of the conditions, including the first condition, upon Mr Nyoni’s registration as a pharmacist. Mr Spencer is a young legal practitioner. Although Mr Spencer was not asked his age, he appeared to be about 30 years old. Mr Spencer said that his direct superior was Dr Gaby who was a manager in the Perth office of AHPRA.

Dr Sharon Gaby

92    Mr Nyoni, having been given leave to issue a subpoena, also called evidence from Dr Sharon Gaby. Dr Gaby gave oral evidence and was cross-examined. Dr Gaby was formerly employed as a manager at AHPRA.

93    Dr Gaby confirmed that she was Mr Spencer’s manager at the time that, in his capacity as an investigator, he prepared and submitted his recommendation to the notifications committee in 2013. Dr Gaby was one of two Western Australian based managers of notifications employed at AHPRA at the time. She was responsible for notifications regarding pharmacists.

94    In the hierarchy above Dr Gaby was Ms Malcolm who, as mentioned, held the title of Director, Notifications and Legal services (WA) and above Ms Malcolm was the state manager, Ms Robyn Collins. Dr Gaby confirmed that she had participated in the telephonic meeting of the notifications committee on 3 September 2013.

Mr Trevor Draysey

95    Mr Trevor Draysey is a pharmacist and is, and was, a member of the Board. Mr Draysey gave evidence by affidavit of 23 June 2017 and was cross-examined.

96    Mr Draysey was in 2013 and 2014 a member of the notifications committee of the Board. He gave evidence about the circumstances in which the Board imposed the first condition on Mr Nyoni’s registration as a pharmacist at the meeting of the notifications committee on 26 November 2013. I have not accepted aspects of Mr Draysey’s evidence.

Mr Christopher Robertson

97    Mr Christopher Robertson is the Executive Director, Strategy and Policy for AHPRA and is based in Melbourne. Mr Robertson gave evidence by an affidavit of 11 August 2017 and was cross-examined. Mr Robertson gave evidence about the operations and finances of AHPRA.

MISLEADING OR DECEPTIVE CONDUCT

98    Mr Nyoni relied upon a contravention by each respondent of s 18 of the ACL in order to invoke the jurisdiction of this Court.

99    Section 18(1) of the ACL provides:

A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive.

100    Mr Nyoni alleged that in publishing the first condition in the national register and on AHPRA’s website each of the respondents engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL.

101    This claim by Mr Nyoni gave rise to a number of stated issues, namely, whether:

(a)    the ACL as a law of the Commonwealth bound the respondents;

(b)    each of the respondents is a trading corporation;

(c)    the extended application of the ACL by the operation of s 6(3) of the CCA applied to the impugned conduct;

(d)    the conduct engaged in by the respondents in publishing the first condition was conduct in trade or commerce;

(e)    the defence in s 19 of the ACL, being “the information provider” defence, applied to AHPRA in respect of the publication;

(f)    by invoking this cause of action, Mr Nyoni engaged in an abuse of process, in light of the fact that he had a right of appeal to the State Administrative Tribunal in respect of the imposition of the first condition;

(g)    by the publication of the first condition, one or both of the respondents made one or more of the following representations:

(i)    Mr Nyoni had self-administered Sch 8 drugs without a prescription; or

(ii)    Mr Nyoni had a propensity to self-administer Sch 8 drugs without a prescription; or

(iii)    Mr Nyoni had an addiction to Sch 8 drugs; or

(iv)    Mr Nyoni was unfit to hold a licence to dispense Sch 8 drugs because of one or more of the foregoing reasons.

(h)    if so, such representation was false or misleading or deceptive or likely to mislead or deceive;

(i)    if so, Mr Nyoni suffered or is likely to suffer loss or damage by reason of the contravening conduct.

102    In light of the conclusion to which I have come, it is convenient that I deal first with the question of whether the conduct by each of the respondents in recording the conditions upon the national register, and publishing the national register on the AHPRA website was conduct in trade or commerce.

103    In my view, Mr Nyoni has failed to establish that the publication of the first condition by the Board and AHPRA on the national register and on AHPRA’s website was conduct “in trade or commerce” within the meaning of s 18 of the ACL.

104    In my view, the publication of the first condition by each of the two statutory bodies was conduct engaged in by a regulatory authority pursuant to a mandatory statutory duty. That conduct does not bear the characteristics of conduct “in trade or commerce”.

105    In Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 (Concrete Constructions) at 602-603, Mason CJ, Deane, Dawson and Gaudron JJ observed:

The phrase “in trade or commerce” in s 52 has a restrictive operation. It qualifies the prohibition against engaging in conduct of the specified kind. As a matter of language, a prohibition against engaging in conduct “in trade or commerce” can be construed as encompassing conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of an overall trading or commercial business. If the words “in trade or commerce” in s 52 are construed in that sense, the provisions of the section would extend, for example, to a case where the misleading or deceptive conduct was a failure by a driver to give the correct handsignal when driving a truck in the course of a corporation’s haulage business. It would also extend to a case, such as the present, where the alleged misleading or deceptive conduct consisted of the giving of inaccurate information by one employee to another in the course of carrying on the building activities of a commercial builder. Alternatively, the reference to conduct “in trade or commerce” in s 52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. So construed, to borrow and adapt words used by Dixon J in a different context in Bank of NSW v The Commonwealth, the words “in trade or commerce” refer to “the central conception” of trade or commerce and not to the “immense field of activities” in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business.

(Footnotes omitted.)

106    Further, at 604, their Honours went on to explain why they preferred the alternative construction of the words “in trade or commerce” as follows:

Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character.

107    In the case of Johnstone v Victorian Lawyers RPA Ltd (2003) 132 FCR 411 (Johnstone), the applicant, Mr Johnstone, a solicitor, brought a claim against the respondent which was a recognised professional association accredited under the Legal Practice Act 1996 (Vic). The respondent had statutory duties to investigate complaints against legal practitioners. Another solicitor, Mr Borden, made a complaint to the Law Institute of Victoria against Mr Johnstone alleging that Mr Johnstone had acted unprofessionally in sending Mr Borden a letter which contained an improper threat.

108    A solicitor acting for the respondent wrote a letter to Mr Johnstone in which she advised that pursuant to the Legal Practice Act the respondent was under a statutory duty to investigate Mr Johnstone’s conduct in relation to the complaint made by Mr Borden.

109    Mr Johnstone commenced an application in this Court alleging that in sending the letter the respondent had engaged in unconscionable conduct in trade or commerce contrary to s 51AA of the now repealed Trade Practices Act 1974 (Cth).

110    Sundberg J dismissed the application on the basis that the conduct of the respondent statutory body in writing and sending the letter pursuant to its duty under the Legal Practice Act was not conduct in trade or commerce.

111    After referring to the two passages from Concrete Constructions which are referred to above, Sundberg J went on to observe at [14]:

In my view it is clear beyond serious argument that the despatch by the respondent of the letter of 11 September was not conduct in trade or commerce. Once the respondent had decided not to dismiss the complaint under s 141 of the Legal Practice Act, it came under a mandatory obligation, imposed by s 146, to investigate the complaint. In sending the letter it was discharging that obligation. The letter was part of the respondent’s function of investigating complaints against practitioners and firms. The letter does not have a commercial or trading character. It is the letter of a body, which may be assumed to be a “corporation” as defined in s 4 of the Trade Practices Act, exercising a regulatory function imposed on it by statute in relation to the professional conduct of legal practitioners.

112    In the case of Markan v Bar Association of Queensland [2013] QSC 146 (Markan), the plaintiff, Mr Markan brought an action against the Bar Association of Queensland which was a body with statutory powers to investigate complaints of unprofessional conduct by barristers in Queensland.

113    Mr Markan had made complaints about the conduct of three Queensland barristers.

114    The Bar Association of Queensland having investigated Mr Markan’s complaints against the Queensland barristers decided to dismiss the complaints. Mr Markan then commenced his action against the Bar Association alleging misleading or deceptive conduct and unconscionable conduct under the ACL. The claims made required Mr Markan to demonstrate that the conduct of the Bar Association was conduct in trade or commerce.

115    Atkinson J followed Johnstone and held that the conduct of the Bar Association in carrying out its statutory functions was not conduct in trade or commerce. At [58], Atkinson J observed:

The investigation of a complaint against a legal practitioner pursuant to a statutory duty to do so cannot be said to be activity engaged in “in trade or commerce” so as to attract the operation of the ACL.

116    In my view, the decisions in Johnstone and Markan are applicable to the circumstances of this case. Thus, in my view, in determining to place conditions upon Mr Nyoni’s registration as a pharmacist and in publishing those conditions, each of the respondents was acting pursuant to a statutory duty, and, in so doing, did not act in trade or commerce.

117    It follows that Mr Nyoni has failed to establish an essential element of his claim that each of AHPRA and the Board contravened s 18 of the ACL and, accordingly, Mr Nyoni’s claim under that statutory provision is dismissed.

118    It is, therefore, unnecessary to consider the other elements of this claim. However, in the event that the matter goes further, I make the following findings.

119    First, in my view, Mr Nyoni has established that an ordinary or reasonable consumer reading the first condition as published would have concluded that in publishing the first condition each of AHPRA and the Board had made the representations alleged by Mr Nyoni (see [101(g)] above).

120    My reasons for coming to that view are essentially the same as the reasons referred to in [181]-[184] below dealing with the imputations arising from the first condition in respect of the defamation claim.

121    Secondly, in my view, Mr Nyoni has failed to prove that he has suffered any actual loss by reason of the misleading or deceptive conduct comprising the publication of the first condition.

122    This conclusion is based on the reasons which I set out below.

123    Mr Nyoni contended that he has suffered millions of dollars in loss by reason of the contravening conduct of AHPRA and the Board. Mr Nyoni claimed that he had suffered the loss of future earnings from the conduct of a pharmacy business and also that he had lost earnings from being denied employment.

124    In respect of the claim for loss of future earnings from the conduct of a pharmacy business, Mr Nyoni in his affidavit of 7 August 2017 adduced evidence of the past financial performance of the Kellerberrin Pharmacy and the earnings which he and his wife had derived from the conduct of that business. More specifically, Mr Nyoni adduced evidence of his income tax returns and the distributions which his wife had received from the Nyoni Family Trust which appeared to be a service trust for the Kellerberrin Pharmacy business. In his affidavit of 7 August 2017, Mr Nyoni refers to these losses as being attributable to the imposition of “the conditions”.

125    There are a number of problems in relation to Mr Nyoni’s claim for loss of future earnings from the conduct of a pharmacy business.

126    Pursuant to s 236 of the ACL, a party is entitled to recover the amount of loss or damage suffered because of misleading or deceptive conduct in contravention of s 18 of the ACL. In other words, there must be a causative link between the misleading or deceptive conduct and the loss or damage which the party claims to have suffered.

127    In this case, the misleading or deceptive conduct alleged does not comprise the imposition and publication of all of the conditions. The misleading or deceptive conduct alleged is the imposition and publication of the first of the conditions.

128    The disability which Mr Nyoni incurred in April 2013 in respect of his practice as a pharmacist was the revocation of his authority under s 23(2) of the Poisons Act to manufacture, possess, sell or supply Sch 8 drugs by the delegate of the chief executive officer of the Department of Health. This revocation was consequent upon his conviction in the Magistrates Court of offences under the Poisons Act and the Poisons Regulations in January 2013. Mr Nyoni was unsuccessful in his attempts in the Supreme Court to set aside the convictions on appeal. Mr Nyoni was also unsuccessful in his attempts to set aside the revocation of his s 23 authority by the delegate of the chief executive officer of the Department of Health. The imposition of the second condition and subsequent conditions by the Board on 26 November 2013 were consequent upon, and reflected the revocation of Mr Nyoni’s s 23 authority.

129    As mentioned, in his affidavit evidence Mr Nyoni has deposed that it is the imposition of the conditions which has caused him the loss of future earnings from the conduct of a pharmacy business. Mr Nyoni did not seek to distinguish between the causative effect of the imposition and publication of the first condition, which comprises the impugned conduct, and the imposition and publication of the remainder of the conditions which reflect the revocation of Mr Nyoni’s s 23 authority by the delegate of the chief executive officer of the Department of Health.

130    Another obstacle to Mr Nyoni proving a loss of future earnings based on the ownership and operation of the Kellerberrin Pharmacy business, is that Mr Nyoni entered into a contract for the sale of the Kellerberrin Pharmacy business about eight months prior to the imposition by the Board of the conditions. Therefore, the impugned conduct could not possibly have had a causative effect upon Mr Nyoni’s decision to sell the Kellerberrin Pharmacy business.

131    I observe in passing that Mr Nyoni continued to operate the Kellerberrin Pharmacy business for about four months after the publication of the conditions which had been imposed by the Board, but Mr Nyoni did not in his evidence prove any specific loss during that four month period said to be attributable to the publication of the first condition, or at all.

132    Further, Mr Nyoni did not lead any evidence upon which it was possible to conclude that by reason of the impugned conduct, he was deprived of the opportunity of purchasing another pharmacy business, after the sale of the Kellerberrin Pharmacy business, which would have yielded him the future earnings which he claimed. Mr Nyoni did not adduce evidence that he was willing and able to purchase such a pharmacy but was deprived of the opportunity of doing so because of the impugned conduct.

133    In further support of this claim for damages, Mr Nyoni adduced evidence of his attempts to secure further employment after the sale of the Kellerberrin Pharmacy business. To that end, Mr Nyoni annexed to his affidavit of 20 April 2015 correspondence with the recruitment agencies in question.

134    The materials which Mr Nyoni has annexed to his affidavit were presented in a haphazard way. So it is not possible to describe comprehensively Mr Nyoni’s attempts to secure employment and the outcome of each application made by Mr Nyoni. Nevertheless, it is apparent that from about October 2014 to April 2015 when his affidavit was sworn, Mr Nyoni had submitted numerous online applications to a variety of recruitment agencies in relation to both full-time and part-time, regional and metropolitan, pharmacist and pharmaceutical sales representative roles. I will, based on the materials adduced into evidence by Mr Nyoni, attempt to describe the applications for employment made by Mr Nyoni and the outcomes.

135    There is email correspondence which shows that on 14 and 15 October 2014, Mr Nyoni applied through the SEEK online jobs board for four pharmaceutical sales representative jobs, in relation to general practitioners, based in Perth and New South Wales as advertised by Bayer Pharmaceuticals, and the recruitment agencies Frontline Health, Paras & Partners and EvansPetersen Healthcare.

136    On Wednesday, 15 October 2014, Mr Nyoni received an email from Ms Kristie Ainsworth, a consultant at Frontline Health, stating that his application had been unsuccessful.

137    On 21 October 2014, Mr Nyoni applied for a job as a general practitioner pharmaceutical sales representative in the north of Western Australia through Randstad recruitment agency. The job was for a pharmaceutical sales representative to manage a portfolio of pharmaceutical products for an unidentified pharmaceutical company, in order to grow sales and market share in that company’s products amongst general practitioners.

138    Mr Nyoni was invited to an interview with Mr Nicolas Aristizabal via Skype. The interview was due to take place on Thursday, 23 October 2014. There is no evidence as to whether the interview ever took place or of the outcome of the interview, but it can be inferred that no job offer eventuated from that interview.

139    Prior to Monday, 27 October 2014, Mr Nyoni applied to the pharmaceutical company GSK for the position of general practitioner sales representative in Sydney south and Coffs Harbour.

140    On Monday, 27 October 2014, Mr Nyoni received an automated email from GSK recruitment advising him that his application had been unsuccessful.

141    In October 2014, Mr Nyoni applied for the position of “Pharmacy Territory Manager” advertised by Michael Page recruitment agency (Michael Page).

142    On Wednesday, 29 October 2014, a representative of Michael Page advised Mr Nyoni that the company would not be able to proceed any further with Mr Nyoni’s application because after Mr Nyoni’s application was received, their client had decided “to postpone the recruitment of the role”.

143    On 31 October 2014, Mr Nyoni was offered a position with Chemist Warehouse in Albury, New South Wales. The offer email of 31 October 2014 from Ms Constantinou of Chemist Warehouse requested Mr Nyoni to provide personal information, including his AHPRA registration number. In response to that email, Mr Nyoni stated that he was in the process of having a condition removed from his registration, and in response to a request for further information by Ms Constantinou, Mr Nyoni replied that the condition to be removed was the revocation of his Sch 8 licence.

144    In early November 2014, Mr Nyoni applied through the SEEK online jobs board for four more pharmaceutical sales representative jobs, including two general practitioner sales roles and two hospital-based sales roles in relation to specialist medical practitioners, two of which were advertised by the recruitment agency Pettit Pharma & Device Search (Pettit), and one each by the recruitment agencies PharMED Hahn and EvansPetersen Healthcare. Automated replies from PharMED Hahn and Pettit stated that only short-listed candidates would be contacted. It may be inferred that these applications too were unsuccessful.

145    On 10 November 2014, Mr Nyoni was advised that an application he had made for the role of pharmacist, within the Jadin Chemist Group, had been unsuccessful.

146    In January 2015, Mr Nyoni applied for the position of “pharmacy - sales representative” through Frontline Health.

147    On Wednesday, 21 January 2015, Mr Nyoni received an email from Ms Connie Fitzpatrick of Frontline Health advising him that his application had been unsuccessful.

148    There is also evidence that on 8 April 2015, Mr Nyoni applied through Adecco Australia, a recruitment agency, for a position as a pharmacist.

149    On Wednesday, 15 April 2015, Mr Nyoni was advised by Mr Paul Fiore of Adecco Australia that his application had been unsuccessful. The email stated:

Unfortunately, the role has be [sic] cancelled. We wish you well in your job search and hope to hear from you again for any future opportunities we have listed that interest you.

150    On 9 April 2015, Mr Nyoni applied for a position as a pharmacist within the My Chemist Retail Group of retail pharmacy stores. That application does not appear to have been successful.

151    Mr Nyoni then applied on 10 April 2015 for another position through the My Chemist Retail Group, this time at a Chemist Warehouse pharmacy in Mayfield, New South Wales.

152    On 11 April 2015, Mr Nyoni received a no reply email in standard form acknowledging receipt of that application.

153    At about the same time that Mr Nyoni was applying for pharmacist and pharmaceutical sales positions, he also submitted various applications for chief executive officer roles. The evidence in this respect is similarly piecemeal; although the following job applications are revealed.

154    On 25 October 2014, Mr Nyoni applied for the position of chief executive officer with the Derby Aboriginal Health Service Council.

155    On 12 November 2014, a representative of the Kimberley Aboriginal Medical Services Council Inc advised Mr Nyoni that his application for the positon of chief executive officer with the Derby Aboriginal Health Service Council had been unsuccessful.

156    At an unspecified date before 27 October 2014, Mr Nyoni applied for the position of chief executive officer of the Richmond Shire Council, Queensland. That application did not appear to have been progressed.

157    On 12 November 2014, Mr Nyoni applied for the position of chief executive officer with CopperChem Limited. On Friday, 28 November 2014, Mr Nyoni received an email saying that his application had not been successful.

158    On Wednesday, 12 November 2014, Mr Nyoni applied for the position of chief executive officer of an unspecified organisation in Darwin, Northern Territory, through Hays recruitment agency.

159    On 13 November 2014, Mr Nyoni appears to have applied for a chief executive officer position through Precruitment recruitment agency and on 25 November 2014, he was advised that he had not been shortlisted.

160    On 14 November 2014, Mr Nyoni applied for the position of chief executive officer of the Northern Territory News in Darwin. The application does not appear to have been proceeded with.

161    Around 17 November 2014, Mr Nyoni applied for the position of chief executive officer of Animal Management in Rural and Remote Indigenous Communities.

162    On 20 November 2014, it appears that Mr Nyoni applied for the position of chief executive officer with “Helen Martin” through the CareerOne online jobs board. The job was located in Uluru, Northern Territory. It appears that application was not progressed.

163    On 4 April 2015, Mr Nyoni applied, through the recruitment agency Chandler Macleod, for a “directors general” position. This application does not appear to have been progressed.

164    None of the emails or letters which rejected Mr Nyoni’s applications stated that the reason why Mr Nyoni was not offered the position was the fact that the potential employer or employment agency had read the first condition on his registration as a pharmacist on the AHPRA website and formed the view that Mr Nyoni was addicted to Sch 8 drugs or had the conditions imposed on him by reason of him self-administering or otherwise abusing Sch 8 drugs.

165    Further, Mr Nyoni did not call any oral evidence from any person to whom Mr Nyoni had applied for a position who said Mr Nyoni had not been offered the position because of the presence of the first condition associated with his registration as a pharmacist on the national register as evident on the AHPRA website.

166    The closest that the evidence gets to showing a causal relationship between the failure of any of Mr Nyoni’s employment applications and the imposition and publication of the first condition on the APHRA website is the application Mr Nyoni made for a position as a pharmacist with Chemist Warehouse in Albury, New South Wales. However, the highest that the evidence gets is that Mr Nyoni revealed to the potential employers that there were conditions on his registration. This revelation appeared to have an adverse effect on Mr Nyoni’s application progressing to a successful conclusion. However, it is not sufficient for Mr Nyoni to show that the imposition of the conditions generally had an adverse effect on his employment applications. This is because Mr Nyoni’s claim is that the contravening conduct comprised the imposition of the first condition which conveyed the false impression that he had abused or was addicted to Sch 8 drugs. Thus, for Mr Nyoni to establish the causal link between the contravening conduct and the damage arising from the failure to obtain employment, it would be necessary for Mr Nyoni to show that he did not obtain an employment position by reason of the presence of the first condition on his registration rather than the presence of the conditions taken together.

167    As I have said, the conditions, other than the first condition, reflect the revocation of his s 23 authority by the chief executive officer of the Department of Health. This revocation inhibited Mr Nyoni’s ability to practice as a pharmacist and was based on his convictions in the Magistrates Court. By the time Mr Nyoni started applying for jobs, he had failed in his attempts to set aside the convictions, and also to set aside the revocation of his s 23 authority.

168    Accordingly, I find that Mr Nyoni has failed to establish that he has suffered any actual economic loss by reason of the publication of the first condition in the national register and on the AHPRA website.

THE CLAIM IN DEFAMATION

169    I deal next with Mr Nyoni’s claim in defamation.

170    It is necessary for Mr Nyoni to establish the following elements of the tort of defamation:

(a)    the respondent published the impugned statement;

(b)    the impugned statement referred to Mr Nyoni;

(c)    the impugned statement was defamatory of Mr Nyoni.

171    I find that on 16 December 2013, AHPRA posted the conditions in respect of Mr Nyoni’s registration as a pharmacist on its website pursuant to s 228(1)(a)(ii) of the National Law. I find that in so doing AHPRA first published the impugned statement on 16 December 2013 and that the publication of the impugned statement, namely, the first condition, continued until 24 July 2015. On that date, the conditions on Mr Nyoni’s registration as published on AHPRA’s website were varied to remove the first condition and to replace it with a different condition. Therefore, AHPRA published the impugned statement on its website for approximately 20 months.

172    There was no dispute between the parties in relation to the publication element of the tort.

173    There was also no dispute that the impugned statements referred to Mr Nyoni. I, therefore, find to that effect.

174    As to the third element, Mr Nyoni contended that the publication of the first condition gave rise to one or more of the following imputations:

(a)    Mr Nyoni had self-administered Sch 8 drugs without a prescription; or

(b)    Mr Nyoni had a propensity to self-administer Sch 8 drugs without a prescription; or

(c)    Mr Nyoni had an addiction to Sch 8 drugs; or

(d)    Mr Nyoni was unfit to hold a licence to dispense Sch 8 drugs because of one or more of the foregoing reasons.

175    Mr Nyoni contended that the imputations were defamatory of him in that as a pharmacist the imputations would cause him to be held in lower esteem by members of the public.

176    The respondents disputed Mr Nyoni’s claim that the publication of the first condition carried with it the imputations relied on by Mr Nyoni. I disagree.

177    The question is whether the “ordinary reasonable reader” would understand the publication of the first condition in its context to carry one or more of the meanings which is relied upon by Mr Nyoni. Thus, the meaning is determined on an objective basis and the intention of the person who published the impugned statement is irrelevant in determining the meaning to be ascribed to the statement. In order to establish defamatory meaning, it is insufficient that one or more persons might have understood the defamatory matter to have the meaning ascribed to it by the applicant. The understanding of the ordinary reasonable reader is determinative.

178    In Farquhar v Bottom [1980] 2 NSWLR 380 (Farquhar) at 386 per Hunt J:

[t]he ordinary reasonable reader is a person of fair, average intelligence…who is neither perverse… nor suspicious of mind…nor avid for scandal.

This ordinary reasonable reader does not…live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs…[T]he ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer.

(References omitted.)

179    In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, French CJ, Gummow, Kiefel and Bell JJ at [3] observed:

A person’s reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.

180    In order to be defamatory, it is sufficient that the impugned statement “impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity” (Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 699 per Lord Pearson).

181    In my view, an ordinary reasonable reader reading the entry in relation to Mr Nyoni’s registration on the AHPRA website would draw the imputations relied upon by Mr Nyoni. Plainly, the vast majority of pharmacists whose registrations are recorded on the AHPRA website do not have conditions associated with their registrations. Therefore, an ordinary reasonable reader would conclude that those who do have conditions associated with their registrations have engaged in conduct which has caused the Board to impose those conditions.

182    As Hunt J has said in the case of Farquhar, an ordinary reasonable reader will read between the lines. In my view, such a reader reading the first and second conditions imposed on Mr Nyoni’s registration would conclude that there is an association between the first condition and the restriction on Mr Nyoni “manufacturing, prescribing, possessing, supplying or selling” Sch 8 drugs in the second condition. An ordinary reasonable reader would conclude that Mr Nyoni had self-administered or was addicted to Sch 8 drugs and this was the reason why he was no longer entitled to sell those drugs.

183    This conclusion derives some further support from the fact that the documents which the respondents belatedly produced on discovery (exhibits 7 and 7A) show that on previous occasions on which the Board had imposed the first condition the Board had believed that the pharmacist in question had or may have abused Sch 8 drugs.

184    Accordingly, I find that Mr Nyoni has established that the first condition carried the imputations which he alleged are defamatory of him because they had the tendency to lower the esteem in which Mr Nyoni was held in his practice as a pharmacist by reasonable members of the public.

185    Accordingly, I find that during the period 16 December 2013 to 24 July 2015, AHPRA published on its website the first condition and that that condition when read in context carried the imputations relied upon by Mr Nyoni and that the imputations were defamatory of him.

186    I also find that the Board is jointly and severally liable with AHPRA for the publication of the defamatory statement. This is because the publication of the impugned statement was made jointly by the Board and AHPRA under the statutory duty imposed upon each respondent to enter the conditions imposed upon Mr Nyoni on the national register and publish the national register on AHPRA’s website.

187    I observe that AHPRA and the Board did not attempt to justify the imputations alleged by Mr Nyoni. The respondents accepted that Mr Nyoni had never self-administered or in any other way abused Sch 8 drugs.

188    The respondents relied on the following defences:

(a)    the first condition was published on an occasion of absolute privilege at common law;

(b)    the first condition was published in a public document such that s 28 of the Defamation Act 2005 (WA) (the Defamation Act) applies;

(c)    the first condition was published on an occasion of qualified privilege under the common law or s 30 of the Defamation Act.

ABSOLUTE PRIVILEGE

189    The respondents bear the burden of establishing absolute privilege.

190    The defence of absolute privilege confers a complete immunity on the publisher of the defamatory statement published on the privileged occasion, irrespective of the motive of the publisher.

191    The respondents submit that the first condition was published on an occasion of absolute privilege.

192    Absolute privilege applies to judicial proceedings and has also been extended to “quasi-judicial” proceedings or proceedings before “tribunals recognised by law”.

193    In Mann v O’Neill (1997) 191 CLR 204 (Mann), the High Court considered the circumstances in which absolute privilege may be available as a defence in respect of the publication of a defamatory statement. In that case the question was whether a letter of complaint made about the competence of a magistrate to the Attorney-General was covered by absolute privilege.

194    At 211-213 in Mann, Brennan CJ, Dawson, Toohey and Gaudron JJ observed:

It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings, or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an “occasion properly incidental [to judicial proceedings], and necessary for [them]”.

It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act “in a manner similar to that in which a Court of justice acts”. Various considerations are relevant to the question whether proceedings are quasi-judicial. However, the overriding consideration is “whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern”. The privilege extends to members of tribunals and to “advocates, litigants, and witnesses”. And its scope is no less extensive in other respects than in the case of statements made in the course of judicial proceedings.

It is sometimes said that absolute privilege is founded on public policy considerations…However, a more precise basis was identified for that aspect of the privilege in Gibbons v Duffell, it being said in that case that absolute privilege attaches because it is “indispensable to the effective performance of…official functions”.

(Footnotes omitted.)

195    The majority in Mann then went on to refer to a number of cases where the proceedings of the disciplinary committees of professional bodies were held to be quasi-judicial. The cases referred to included the proceedings of the disciplinary committee of the Law Society of England and Wales (Addis v Crocker [1961] 1 QB 11), the disciplinary committee of the Law Institute of Victoria (Hercules v Phease [1994] 2 VR 411 (Hercules)) and disciplinary inquiries by Benchers of the Inns of Court (Lincoln v Daniels [1962] 1 QB 237 (Lincoln)).

196    The majority observed that in Lincoln the disciplinary inquiries by the Benchers of the Inns of Court were held to be “absolutely privileged, notwithstanding that they are not authorised by statute and that their procedures differ in material respects from those of a court”.

197    The majority went on to observe at 214:

Lincoln v Daniels is significant in another respect. It was held in that case that privilege did not attach to a letter of complaint forwarded to the Bar Council, for the letter did not initiate proceedings before the Benchers. Indeed, it was pointed out by Danckwerts LJ that the Bar Council and the Benchers of the Inns of Court were distinct bodies, the Bar Council being “no more than an investigating body, without…any judicial or quasi-judicial functions or any disciplinary powers”. However, the Bar Council functioned “as a clearing house for complaints against members of the Bar”…

(Footnotes omitted.)

198    The majority also went on to refer to Hercules. That was a case in which the Court of Appeal of the Supreme Court of Victoria considered whether a complaint to the secretary of the Law Institute of Victoria could be characterised as the initiating process before the Solicitors’ Board, a quasi-judicial tribunal. The secretary of the Law Institute had no disciplinary powers and only had the power to refer the complaint to another body; disciplinary proceedings would not invariably follow from the making of a complaint. The Court of Appeal found that absolute privilege attached to the contents of the letter of complaint.

199    The majority in Mann observed at 215:

Where, as in Hercules v Phease, the complaint is part of an established procedure which must be set in motion if it is to result in disciplinary proceedings, the complaint is properly regarded as a step in those proceedings even if the disciplinary proceedings will not necessarily eventuate. In that situation, the complaint is “incidental [to the proceedings], and necessary for [them]”. Accordingly, it is properly to be regarded as a necessary first step.

(Footnote omitted.)

200    In Mann, the majority found that the letter of complaint to the Attorney-General was not covered by absolute privilege because in dealing with the letter the Attorney-General was acting in an administrative capacity.

201    It is convenient now to refer to the statutory scheme established under the National Law for the conduct of disciplinary proceedings in respect of health practitioners.

202    Part 8 of the National Law deals with disciplinary proceedings in relation to health practitioners. The term “health practitioner” includes a reference to a pharmacist (see s 5 definition).

203    Division 2 of Pt 8 deals with the circumstances which impose a mandatory duty to notify AHPRA of specified conduct by a health practitioner. Thus, for example, the National Law imposes a duty on, inter alia, fellow health practitioners and employers of health practitioners to notify AHPRA of certain categories of alleged misconduct.

204    Division 3 of Pt 8 deals with voluntary notifications to AHPRA in respect of the conduct of health practitioners. Any person or unincorporated association may make such a notification.

205    Section 146 provides that a notification may be made verbally or in writing to AHPRA. Section 148 then provides that AHPRA is to refer the notification to the relevant Board as soon as practicable.

206    Section 149 provides for a preliminary assessment to be made by the Board of the notification. There are a number of options open to the Board consequent upon the assessment of a notification. These include that the Board:

(a)    take no further action (s 151);

(b)    take “immediate action” (s 156);

(c)    investigate (s 160);

(d)    require a health practitioner to undergo a health or performance assessment (ss 169-170);

(e)    take action, including imposing conditions or accepting undertakings or cautioning the practitioner (178); or

(f)    refer the matter to a “responsible tribunal” (s 193).

207    Section 152 provides that the Board is to give the practitioner notice of the notification and the nature of the notification.

208    Division 8 of Pt 8 of the National Law is entitled “Investigations”.

209    Section 160 of the National Law provides that a Board may investigate a registered health practitioner if it decides that it is necessary or appropriate to do so because it has received a notification about the practitioner; or because the Board believes the way the practitioner practices is or may be unsatisfactory, or the practitioner’s conduct is or may be unsatisfactory.

210    The Board must direct an appropriate investigator to conduct the investigation (s 160(2)) and give the practitioner written notice about the investigation (s 161(1)). The Board may either appoint a member of AHPRA’s staff or a contractor to AHPRA to be an investigator (s 163(1)).

211    After having completed the investigation, the investigator must give a written report about the investigation to the Board (s 166(1)). The report must include the investigator’s findings about the investigation and the investigator’s recommendations about any action to be taken in relation to the practitioner (s 166(2)).

212    After considering the investigator’s report, the Board must decide either to take no further action, or to take any action the Board considers necessary or appropriate under another Division of the National Law (see below) or to refer the matter to another entity for investigation or other action (s 167).

213    The other Divisions of the National Law that are relevant include:

(a)    Division 10 which empowers the Board to take disciplinary action itself in respect of a practitioner, including the imposition of conditions on a practitioner’s registration;

(b)    Division 11 which provides for the establishment of, and proceedings before, health panels and performance and professional standards panels; and

(c)    Division 12 which provides for the referral of disciplinary matters to the “responsible tribunal” (which in Western Australia is the State Administrative Tribunal).

214    Where a matter is referred to a responsible tribunal under s 193, the National Law states who the parties will be (s 194), provides for a rule about costs (s 195), lists a range of findings and decisions which the tribunal may make and the range of actions and sanctions which may be imposed (ss 196-197) and provides that the Act establishing the tribunal will apply, except where the National Law provides to the contrary (s 198). The establishing Act in Western Australia is the State Administrative Tribunal Act 2004 (WA).

215    When a Board refers a matter to a panel the National Law prescribes the composition of such a panel and provides that the practitioner must be given notice of the time, date and location of the hearing, as well as its nature, and that the practitioner has an option to have a lawyer or other person attend the hearing. The panel may give the lawyer leave to appear for the practitioner. Section 185 provides that the panel may decide its own procedure but requires the panel to observe the rules of natural justice, although not the rules of evidence. By s 187 notifiers (complainants) may make a submission to the panel with leave. The National Law goes on to provide by s 192, inter alia, that the panel must provide reasons for its decision and these reasons must be provided to the practitioner.

216    In this case, after receiving the investigator’s report, the Board decided to proceed under s 178 which is in Division 10 of the National Law.

217    Section 178(1) of the National Law relevantly provides:

(1)    This section applies if —

(a)    a National Board reasonably believes, because of a notification or for any other reason —

(i)    the way a registered health practitioner registered by the Board practises the health profession, or the practitioner’s professional conduct, is or may be unsatisfactory; or…

and

(b)    the matter is not required to be referred to a responsible tribunal under section 193; and

(c)    the Board decides it is not necessary or appropriate to refer the matter to a panel.

218    Section 178(2) and (3) provide:

(2)    The National Board may decide to take one or more of the following actions (relevant action) in relation to the registered health practitioner or student —

(a)    caution the registered health practitioner or student;

(b)    accept an undertaking from the registered health practitioner or student;

(c)    impose conditions on the practitioner’s or student’s registration, including, for example, in relation to a practitioner —

(i)    a condition requiring the practitioner to complete specified further education or training within a specified period; or

(ii)    a condition requiring the practitioner to undertake a specified period of supervised practice; or

(iii)    a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or

(iv)    a condition requiring the practitioner to manage the practitioner’s practice in a specified way; or

(v)    a condition requiring the practitioner to report to a specified person at specified times about the practitioner’s practice; or

(vi)    a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;

(d)    refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.

(3)    If the National Board decides to impose a condition on the registered health practitioner’s or student’s registration, the Board must also decide a review period for the condition.

219    In my view, the proceedings of the notifications committee of the Board under s 178(2) of the National Law are quasi-judicial proceedings with the consequence that the statement made by the notifications committee of the Board in imposing and publishing the first condition in respect of Mr Nyoni’s registration is covered by absolute privilege.

220    I have come to that conclusion for the following reasons.

221    First, the Board satisfies the first of the relevant considerations identified by the High Court in Mann, namely, that the tribunal is recognised by law. This is evidenced by the fact that the Board is given power under s 178 of the National Law to consider whether the professional conduct of a practitioner is or may be unsatisfactory and, if the Board reasonably believes that to be the case, to impose sanctions.

222    Secondly, in my view, the proceedings before the Board under s 178 of the National Law fall within the description of proceedings from which will emerge a “determination the truth and justice of which is a matter of public concern”. A primary purpose for the enactment of the notification and disciplinary provisions found in Pt 8 of the National Law is the protection of the public. (See s 3(2)(a) of the National Law.) Plainly, the protection of the public from unsatisfactory professional conduct by health practitioners is a matter of public concern. Section 178 gives effect to this public concern by providing for the professional conduct of a health practitioner to be scrutinised by the Board, and, if the Board is reasonably satisfied that such conduct is unsatisfactory, for sanctions to be imposed upon that health practitioner.

223    Thirdly, unlike the Attorney-General in Mann, or the Bar Council in Lincoln, the Board is given power under s 178 to consider whether the conduct of a health practitioner is unsatisfactory and also to impose sanctions upon the Board being reasonably satisfied to that effect.

224    In this respect the Board is in a different position to the Bar Council in Lincoln in receiving a complaint about the professional conduct of a barrister because the Bar Council was no more than a clearing house and had no powers to consider whether the barrister had acted unprofessionally nor to impose sanctions attendant upon any such finding. Likewise, the Attorney-General in considering a complaint about the magistrate in Mann received the letter of complaint in no more than an administrative capacity.

225    The Board also has the power to refer more serious departures by health practitioners from professional standards to different bodies such as a panel or, in Western Australia, to the State Administrative Tribunal. However, the existence of that power does not detract from the fact that it has the power to consider and determine complaints of professional conduct which depart from professional standards and to impose sanctions, albeit, that the departures from such standards may be less serious. Accordingly, in my view, the same considerations that would motivate the rationale for according absolute privilege to proceedings before a panel or the State Administrative Tribunal also operate in relation to disciplinary proceedings conducted by the Board under s 178 of the National Law.

226    That rationale has been identified by Sankey J in Copartnership Farms v Harvey-Smith [1918] 2 KB 405 at 408 in the following observations:

That point of law now comes on for determination, and it falls to be decided whether a local tribunal set up under the Military Service Acts, 1916, and the regulations made in pursuance thereof is a tribunal of such a character that any statements made by a member thereof during the course of proceedings before it are absolutely privileged. A number of cases have been cited, but in my opinion there cannot be any controversy upon the principle of law which is applicable to the present case. That principle I conceive to be this, that where a tribunal is a Court of justice, or a body acting in a manner similar to that in which a Court of justice acts, any statement made by a member thereof is absolutely privileged and no action can be brought thereon. This absolute privilege extends also to advocates, litigants, and witnesses, and the reason which has induced our law to adopt that principle is, if I may be allowed to say so, best stated by Channell J in Bottomley v Brougham, “the reason being that it is desirable that persons who occupy certain positions as judges, as advocates, or as litigants should be perfectly free and independent, and, to secure their independence, that their acts and words should not be brought before tribunals for inquiry into them merely on the allegation that they are malicious.”

227    Fourthly, s 179 of the National Law provides that the practitioner whose conduct is to be considered by the Board and in respect of which a sanction may be imposed under s 178, is to be given an opportunity to make a written or verbal submission in respect of the proposed action. The Board is required to consider any submission made in accordance with that section. The procedures proposed by s 179 in respect of proceedings under s 178 are different from those identified in respect of proceedings before a panel (see [215] above) and a tribunal (see [214] above). Before a panel, a health practitioner is entitled to a hearing and to be accompanied by a legal practitioner or other person.

228    However, the fact that proceedings before the Board under s 178 are more circumscribed than would be the case before a panel or a tribunal is not, as the Court of Appeal in Lincoln recognised, fatal to a finding that the proceedings in question may be quasi-judicial.

229    It follows, therefore, that the defence relied upon by the Board of absolute privilege succeeds.

230    I have some doubt as to whether AHPRA can also rely upon the defence of absolute privilege on the basis that the entry of the conditions in the national register is to be treated as a document associated with the quasi-judicial proceedings of the Board.

231    However, it is unnecessary to decide that question because, for the reasons given below, I consider AHPRA can rely on the defence of publication in a public document.

PUBLIC DOCUMENT DEFENCE

232    Section 28(1) of the Defamation Act provides:

It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in –

(a)    a public document or a fair copy of a public document; or

(b)    a fair summary of, or a fair extract from, a public document.

233    The relevant definition of “public document” is found in s 28(4) of the Defamation Act which provides:

In this section –

public document means –

…

(e)    any record or other document open to inspection by the public that is kept –

(i)    by an Australian jurisdiction;

(ii)    by a statutory authority of an Australian jurisdiction;

(iii)    by an Australian court; or

(iv)    under legislation of an Australian jurisdiction;

234    In my view, the respondents have demonstrated that the defamatory statement, namely, the first condition, was contained in a public document. The document in question is the national register which is required to be kept by s 222 of the National Law and is required to contain the information specified in s 225 of the National Law. Section 228(1) of the National Law provides that the national register is to be open to inspection by the public and is to be kept on, inter alia, AHPRA’s website.

235    Accordingly, subject to s 28(3) of the Defamation Act, the respondents have established a defence under s 28(1) of the Defamation Act.

236    Section 28(3) of the Defamation Act provides:

A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

237    Accordingly, for Mr Nyoni to defeat the public document defence under s 28(1) of the Defamation Act, he would need to establish that the first condition was not published by each of the respondents honestly for the information of the public.

238    In the case of Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58 (Waterhouse), Hunt J considered a defence to defamation provided by s 24 of the Defamation Act 1974 (NSW) in respect of the publication of a fair protected report of proceedings including, in that case, court proceedings.

239    Section 26 of the Defamation Act (NSW) provided that the defence could be defeated only if the plaintiff established that the publication complained of was not in good faith for public information or the advancement of education.

240    The defendant had broadcast a report of a court proceeding in which the defendant had reported statements regarding the possession of a firearm by the plaintiff. Hunt J considered whether the fair protected report defence had been defeated.

241    At 64, Hunt J observed:

The 1974 Act does, however (as did the common law and the earlier statutes), require the defendant to effect that purpose in good faith. This is where questions may arise as to the result which the defendant sought to achieve by his publication. A proprietor of a newspaper may publish a report of court proceedings in order to inform the public of what happened in those proceedings, but he does so because he bears ill-will towards the plaintiff and wishes to injure him by that publication. If the plaintiff can establish that motive, he would have discharged his onus of showing that the publication was not in good faith notwithstanding that its purpose was to inform the public. The distinction between purpose and motive is one already accepted in this field…

(Original emphasis.)

242    In my view, the observations of Hunt J in Waterhouse apply also to the construction of the words “honestly for the information of the public” in s 28(3) of the Defamation Act.

243    I deal first with the question of whether Mr Nyoni has defeated the public document defence raised by AHPRA.

244    Mr Nyoni adduced evidence from two officers of AHPRA. They were Mr Spencer and Dr Gaby.

245    Mr Spencer said that he did not have a specific recollection of how he came to include the first condition in the recommendation which he prepared as investigator appointed under s 163 of the National Law for the notifications committee.

246    Mr Spencer gave the following evidence:

And in imposing those conditions you also said the registrant was prohibited from taking schedule 8 drugs or self-prescribing or except for those that were legally prescribed. Can you explain how you got to that?---Sure. I can’t specifically recall how we came or how I came to recommend that, but the usual course would be that as an investigator I would discuss with my manager what the most appropriate form of action would be and what – my recollection is that such conditions had been imposed on pharmacist’s registration in other – in other similar circumstances and that’s what occurred again here.

247    Later, Mr Spencer gave the following evidence as to his motivation for including the first condition in the recommendation he made to the notifications committee:

So did it cross your mind that if that was published on the internet people might think that Mr Nyoni was a drug taker?---At the time I — I — I couldn’t say whether that was — whether I thought about that.

Well, what motivated you to put it in there then?---Because what I said a moment ago, as far as I can recall, it would have been following discussions with Ms Gaby about what had been done perhaps in other states in similar circumstances before and that those raft of conditions is what would have – or those set of conditions is what would – was imposed in those circumstances and that these were also similar circumstances where they would – where they could be imposed.

248    During cross-examination by Mr Pynt for the respondents, Mr Spencer said:

MR PYNT: When you – from what you’re saying, you drafted the investigation report?---That’s right, yes.

And was the process then you would deliver the draft, in this case, to Ms Gaby - - -?---Yes.

- - - for her to look at?---For her to look at before it – yes.

And then, before you provided the investigation report to the notifications committee - - -?---Yes.

- - - it had to have been ticked off by Ms Gaby?---Yes, that’s right. Yes.

But it was your report?---It was still my report, yes.

249    Mr Spencer also said that he had attended by telephone part of the meeting of the notifications committee on 26 November 2013. Mr Spencer could not remember the specifics of any discussion at that meeting regarding the imposition of the first condition and the implications thereof.

250    Mr Spencer said he was not the investigator handling the file in August 2014 when Mr Nyoni wrote his letter of 22 August 2014 complaining that the terms of the first condition were defamatory. Mr Spencer went on to say that at the time that Mr Nyoni wrote his letter of 22 August 2014, the investigator appointed in respect of that notification regarding Mr Nyoni was Ms Rodgers.

251    In her evidence-in-chief, Dr Gaby said that she accepted that Mr Spencer could potentially have taken the conditions which he imposed from another set of conditions which had been imposed on another practitioner.

252    During her evidence, Dr Gaby said that the AHPRA hierarchy in Western Australia comprised the state manager, Ms Collins; director of notifications, Ms Malcolm; two managers, of which Dr Gaby was one, and then two team leaders.

253    Mr Anderson was a team leader and he reported to Dr Gaby on pharmacy matters. At the next level down were case managers. Mr Spencer was a case manager.

254    Dr Gaby also said that there were no formal guidelines within AHPRA which required an investigator to refer the potential conditions which the investigator intended to recommend to the notifications committee to a senior member of staff within AHPRA. Rather, said Dr Gaby, the process was:

It would be, you know, prepare it. If you had any queries, go and consult about it. Perhaps look at other examples of, you know, what had been done in the past or, you know, across professions, even, and then prepare the paper. The paper would be then reviewed by – usually the team leaders check the papers to start with and – and then submit it to the board for review at the meeting.

255    Dr Gaby accepted that Mr Spencer may have consulted her about the conditions which were contained in his recommendation to the notifications committee.

256    Dr Gaby also accepted that Ms Rodgers may have referred Mr Nyoni’s letter of 22 August 2014 to her; and that she, Dr Gaby, “probably would have referred it to [AHPRA’s] legal team for review”.

257    Dr Gaby said that before she attended the meeting of the notifications committee on 3 September 2013 she had read the papers. She accepted that she would have known that there was an intention to impose the conditions. Dr Gaby said that she had no specific recollection of the notifications committee meeting on 3 September and that she could not recall whether she was actually asked any questions or whether she provided any background at that meeting. Dr Gaby could give no explanation for why the first condition was among the conditions which were recommended to the notifications committee. Dr Gaby said that she could not recall how much critical scrutiny she gave to the conditions.

258    I accept Mr Spencer’s evidence that when preparing his draft investigation report and in choosing the conditions which he recommended should be imposed on Mr Nyoni’s registration as a pharmacist, he had consulted, and used as guidance, conditions which the Board had imposed upon other pharmacists on previous occasions.

259    I also accept Mr Spencer’s evidence that he discussed the contents of his investigation report whilst it was still in draft form with his manager, Dr Gaby.

260    Although Dr Gaby could not recall the contents of any discussion with Mr Spencer about his draft investigation report, Dr Gaby accepted that such discussions between herself and Mr Spencer, and between Mr Spencer and his team leader, may well have occurred.

261    This is consistent with the evidence comprising the email of 19 August 2013 from Mr Spencer’s team leader, Mr Anderson to Mr Spencer, and copied to Dr Gaby, containing an amended version of Mr Spencer’s draft investigation report. The email contained instructions from Mr Anderson to Mr Spencer to make the amendments which Mr Anderson proposed to the draft investigation report. I find, therefore, that both Mr Anderson and Dr Gaby were involved in the preparation of the investigation report submitted by Mr Spencer to the notifications committee.

262    That Dr Gaby and Mr Anderson were involved in overseeing Mr Spencer in the preparation of his investigation report is further evidenced by the fact that each was present at the meeting of the notifications committee of 3 September 2013.

263    For the following reasons, I find that Mr Nyoni has failed to prove his contention that by Mr Spencer recommending to the Board in his investigation report that the first condition be imposed on Mr Nyoni’s registration as a pharmacist, AHPRA did not publish the first condition honestly for the information of the public.

264    I find that Mr Spencer included the first condition as a recommended condition in the investigation report not because Mr Spencer had any ill-will towards Mr Nyoni or any motive to injure Mr Nyoni’s reputation. Rather, I find that the inclusion of that condition was founded upon Mr Spencer’s inadvertent use of an inappropriate precedent in choosing the conditions to recommend in respect of Mr Nyoni in his investigation report. This is because it is apparent that the conditions which Mr Spencer used as a precedent had been imposed on practitioners whom the Board believed had or may have abused prescription drugs. This is apparent from the documents which were belatedly discovered by the respondents (see exhibits 7 and 7A).

265    Further, Mr Spencer was appointed as an investigator under s 163 of the National Law and that appointment has an independent standing. Thus, in acting as an investigator and in preparing the investigation report Mr Spencer may well have not been acting in the capacity of an officer of AHPRA such that AHPRA would be responsible for the acts and omissions of Mr Spencer as an investigator.

266    However, that is not the end of the matter as concerns AHPRA in relation to the preparation of the investigation report. This is because, as I have found, Dr Gaby and Mr Anderson were acting as AHPRA officers in overseeing the preparation of the investigation report by Mr Spencer. In that capacity, Dr Gaby and Mr Anderson as AHPRA officers bear a responsibility for the contents of the investigation report.

267    However, for the following reasons, I find that Mr Nyoni has failed to prove that by their conduct in tacitly approving the contents of Mr Spencer’s investigation report which, of course, included the first condition, Dr Gaby and Mr Anderson acted with ill-will towards Mr Nyoni or with a motive of injuring Mr Nyoni’s reputation.

268    Mr Nyoni did not call any evidence from Mr Anderson.

269    Dr Gaby’s evidence was that she could not recall how much critical scrutiny she gave to the conditions proposed by Mr Spencer in his investigation report before attending the notifications committee meeting. Thus, insofar as the acts or omissions of Dr Gaby contributed to the recommendation to the Board that the first condition be imposed upon Mr Nyoni’s registration as a pharmacist, the most that can be said, on the evidence, is that circumstance arose by reason of the inadvertence of Dr Gaby; and not out of any ill-will by Dr Gaby towards Mr Nyoni or any motive on Dr Gaby’s part of injuring Mr Nyoni’s reputation.

270    Next, insofar as Mr Nyoni contended that in publishing the first condition on the AHPRA website on 16 December 2013, AHPRA did not publish that condition honestly for the information of the public, I find, for the following reasons, that Mr Nyoni has failed to prove that contention.

271    Mr Spencer’s evidence was that he was not involved in the process of entering the decisions of the Board on to the national register. Mr Spencer’s evidence was that it was the function of managers at AHPRA to give effect to decisions of the Board. Dr Gaby was not asked any questions as to her involvement, if any, in the process.

272    Mr Nyoni called no other evidence as to the circumstances in which AHPRA caused the decision of the Board of 26 November 2013 to be published on AHPRA’s website on 16 December 2013, or the motivation of any AHPRA officer or officers involved in the publication of the conditions on AHPRA’s website.

273    Accordingly, there is no evidence upon which Mr Nyoni can found his contention that the officer or officers of AHPRA responsible for publishing the first condition on AHPRA’s website, did so out of ill-will towards Mr Nyoni or in furtherance of a motivation to injure Mr Nyoni’s reputation.

274    Mr Nyoni’s next contention was that from 22 August 2014 onwards, AHPRA did not publish the first condition on its website honestly for the information of the public. Mr Nyoni’s letter of 22 August 2014 complained that the first condition was defamatory of him. For the following reasons, I find that Mr Nyoni has failed to prove this contention.

275    AHPRA was under a statutory duty to publish the national register as it existed from time to time. AHPRA had no power to vary the condition imposed by the Board - that was the preserve of the Board.

276    Mr Spencer’s evidence was that he was not the recipient of the 22 August 2014 letter because Mr Nyoni wrote and sent the letter in relation to an investigation which was being carried out by another investigator, Ms Rodgers.

277    Dr Gaby’s evidence was that she thought that Mr Nyoni’s letter of 22 August 2014 had come to her attention but that she had probably referred the letter to the legal department of AHPRA.

278    The evidence shows that Ms Rodgers brought the letter to the attention of the Board and also brought to the attention of the Board the fact that Mr Nyoni had contended in that letter that the first condition was defamatory.

279    In bringing the letter to the attention of the Board, AHPRA acted properly because, as I have said, it was the Board and not AHPRA that had the power to vary any of the conditions imposed on a pharmacist.

280    It is not possible to infer from the foregoing evidence and circumstances that in continuing to publish the first condition on its website after 22 August 2014, AHPRA did so out of ill-will to Mr Nyoni or to give effect to a motive to injure Mr Nyoni’s reputation.

281    Accordingly, I find that Mr Nyoni has failed to discharge the onus in s 28(3) of the Defamation Act of proving that the first condition was not published honestly for the information of the public by AHPRA.

282    The consequence is that AHPRA is entitled to rely on the public document defence.

283    I now turn to consider the position of the Board.

284    Mr Nyoni’s first contention is that in publishing the first condition on the national register, the Board did not publish the first condition honestly for the information of the public.

285    Mr Nyoni’s second contention is that in continuing, after his letter of 22 August 2014, to publish the first condition on the national register, the Board did not publish the first condition honestly for the information of the public.

286    Mr Nyoni did not call any member of the Board to give evidence in support of his contentions.

287    However, in support of the second contention, Mr Nyoni relied on the fact that the Board did not until 24 July 2015, remove the first condition from the national register notwithstanding that the Board knew by 30 September 2014, at the latest, that he regarded the first condition as defamatory. Mr Nyoni contended that the Court should infer that in continuing to publish the first condition after 30 September 2014, the Board did so out of ill-will towards Mr Nyoni and that its motive in doing so was to injure Mr Nyoni’s reputation.

288    The Board adduced evidence from Mr Draysey. Mr Draysey is a pharmacist who sits on the Board and also the notifications committee of the Board. Mr Draysey was the chair of the notifications committee meeting on 26 November 2013 when the conditions were imposed upon Mr Nyoni’s registration as a pharmacist.

289    Mr Draysey said that meetings of the notifications committee took place about 13 or 14 times a year. Mr Draysey said that there was paperwork to read for each of the notifications committee meetings. Mr Draysey gave the following evidence:

About how much paperwork, just on average?---On average, the last two I’ve done have been 4000 pages.

290    Mr Draysey gave evidence about the meeting of the notifications committee on 26 November 2013. Mr Draysey agreed that there had been some discussion at the meeting about whether to impose the first condition and said that “the unanimous decision was to impose the conditions as proposed”.

291    Mr Draysey said that the reason the first condition was imposed was to protect Mr Nyoni. Mr Draysey said that the second condition reflected the terms of the restrictions imposed on Mr Nyoni arising from the revocation by the Department of Health of his s 23 authority to manufacture, possess, sell or supply Sch 8 drugs. Mr Draysey said that he considered that the prohibition imposed by the Department of Health, which was reflected in the second condition, precluded Mr Nyoni from possessing Sch 8 drugs in any circumstance, even if possessed in a private capacity as a result of being prescribed such a drug to treat a medical condition.

292    Accordingly, said Mr Draysey, his intention in imposing the first condition was to permit Mr Nyoni to possess Sch 8 drugs in the event that he was prescribed such drugs because of a medical condition he may suffer. Mr Draysey said that “there was no sinister intent”.

293    Mr Draysey was also taken to the letter written by Mr Nyoni on 22 August 2014 and the meeting of the notifications committee of 30 September 2014.

294    Mr Draysey said that he was an apology for the meeting of the notifications committee of 30 September 2014 at which Mr Nyoni’s letter was brought to the attention of the Board. As mentioned above, there was a reference in the investigation report before the notifications committee on that day to the fact that Mr Nyoni was of the view that the first condition was defamatory.

295    Mr Draysey said that he never read the papers for that meeting either before or after the meeting. Mr Draysey went on to depose that he could not remember the issue of Mr Nyoni objecting to the first condition on the ground that it was defamatory, coming up at any other notifications committee meeting thereafter.

296    Mr Draysey also said that much later, Mr Nyoni’s letter came to his attention. Mr Draysey gave the following evidence in relation to becoming aware of the letter:

Can you have a look at page — read the first paragraph of page 379. You see Mr Nyoni is complaining about the wording of the first condition?---Yes. Yes, he — yes, I do. And as I mentioned to you earlier if I had my time again, I would have used different wording. We do that now with - - -

Did you actually — did you ever learn about Mr Nyoni’s complaint that it was defamatory?---I only saw that much later. We didn’t consider it a defamatory action.

You didn’t consider it defamatory notwithstanding that Mr Nyoni said he didn’t like it?---This letter I saw after we had made the decision to impose the conditions on his registration.

Yes, I know, but did you immediately remove the condition?---No. I don’t recall that a request came to the board to do that. The board can’t act on its own volition.

Well, didn’t you think this letter was a request to remove it?---It didn’t – it was addressed to someone in AHPRA.

I know, but I’m asking you whether it came to your attention. I agree it was to AHPRA?---The board can only act upon a paper that comes to the board. This is a paper that’s gone to AHPRA from the practitioner. There is no recommendation to remove that condition.

297    I do not accept Mr Draysey’s evidence that his intention in imposing the first condition was to protect Mr Nyoni by permitting him to possess Sch 8 drugs in his private capacity should he be prescribed such drugs for a medical condition. That explanation is simply implausible.

298    If Mr Draysey and, to the extent that Mr Draysey suggested that his view was the common view of the notifications committee, the other members of the committee, had intended to achieve that objective, they would have deleted the first condition and added the following words at the end of the second condition:

save that the Practitioner may possess such Schedule 8 drugs as he may be prescribed for any medical condition.

299    This was the drafting style used in relation to the third condition which stated:

The Practitioner is prohibited from supplying Schedule 8 drugs, save in an emergency…

300    It is pertinent to observe, in this regard, that one of the members of the notifications committee who attended that meeting, Ms O’Keefe, is a lawyer.

301    Further, Mr Draysey was not able to explain why, if that was the intention of Mr Draysey or the notifications committee, it was necessary to include in the first condition a prohibition on self-administering Sch 8 drugs.

302    Mr Spencer, who was present by telephone during the discussion of this item of the agenda of the notifications committee, could not remember the content of any discussion in respect of the conditions.

303    In my view, the evidence which Mr Draysey gave was an ex post facto attempt to rationalise the imposition of the first condition.

304    However, the fact that I have rejected the evidence of Mr Draysey on this point does not mean that Mr Nyoni has proved that one or more members of the notifications committee acted out of ill-will towards Mr Nyoni or were motivated in imposing and subsequently publishing the first condition on the national register and the AHPRA website to injure Mr Nyoni’s reputation.

305    In my view, the imposition of the first condition by the notifications committee at the meeting of 26 November 2013 is to be explained on the basis that the notifications committee inadvertently overlooked the fact that the first condition contained the imputations which Mr Nyoni has alleged, and that his convictions in the Magistrates Court did not relate to any abuse of Sch 8 drugs, and that it simply implemented without question the recommendation of the investigator. That scenario is consistent with the fact that Mr Nyoni’s written submissions to the Board of 4 November and 19 November 2013 as to why the proposed conditions, including the first condition, should not be imposed upon him, made no mention at all that the first condition was unjustified on the basis that it was defamatory and did not reflect the nature of the offences for which he had been convicted in the Magistrates Court.

306    Inadvertence, of course, does not equate to the absence of honesty.

307    Accordingly, I find that Mr Nyoni has failed to prove the first of his contentions.

308    As to the second of Mr Nyoni’s contentions, I do not infer from the fact that the Board did not in response to Mr Nyoni’s letter of 22 August 2014 remove the first condition from the national register, that it continued to publish the first condition because any member of the Board bore ill-will towards Mr Nyoni or that the motivation in continuing to publish the first condition was a desire to injure the reputation of Mr Nyoni.

309    The only evidence from a member of the Board on this issue was given by Mr Draysey. That evidence is to the effect that Mr Draysey did not believe that the Board had, in the absence of a recommendation from AHPRA, power to vary the first condition, or indeed, any condition.

310    In my view, that opinion does not properly reflect the legal power of the Board to vary a condition.

311    Clause 23 in Sch 7 to the National Law provides as follows:

If this Law authorises or requires the making of an instrument or decision —

(a)    the power includes power to amend or repeal the instrument or decision; and

(b)    the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.

312    The terms of cl 23 of Sch 7 to the National Law and s 178 of the National Law are sufficiently wide to permit the Board of its own motion to have changed the conditions at any time before it ultimately changed the condition on 24 July 2015.

313    But that conclusion does not mean that Mr Nyoni has discharged the onus of proving that the publication of the first condition after 30 September 2014 occurred by reason of ill-will towards him by the Board or because the Board was motivated by a desire to injure Mr Nyoni’s reputation.

314    The continued publication of the first condition is, on the evidence, explicable on the basis of ignorance by Mr Draysey of the true legal position.

315    In Roberts v Bass (2002) 212 CLR 1, the High Court observed in relation to the question of an abuse of the occasion of qualified privilege that carelessness including ignorance or stupidity did not found a basis for the inference of malice. Gaudron, McHugh and Gummow JJ observed at [103]:

Carelessness of expression or carelessness in making a defamatory statement never provides a ground for inferring malice. The law of qualified privilege requires the defendant to use the occasion honestly in the sense of using it for a proper purpose; but it imposes no requirement that the defendant use the occasion carefully. Even irrationality, stupidity or refusal to face facts concerning the plaintiff is not conclusive proof of malice although in “an extreme” case it may be evidence of it. And mere failure to make inquiries or apologise or correct the untruth when discovered is not evidence of malice.

(Footnotes omitted.)

316    In my view, those observations are equally applicable in this circumstance.

317    It is not possible, in my view, to infer from the evidence adduced that the failure of the Board to remove the first condition after 30 September 2014 was motivated by ill-will towards Mr Nyoni or by the desire to cause injury to his reputation.

318    Accordingly, I find that Mr Nyoni has failed to prove his second contention.

319    The consequence is that in addition to being able to rely upon the absolute privilege defence, the Board would also be able to rely upon the public document defence.

QUALIFIED PRIVILEGE

320    By reason of my findings in relation to the defence of absolute privilege and the public document defence, it is unnecessary to consider whether AHPRA or the Board would also be entitled to rely on the defence of qualified privilege.

321    However, in case this matter goes further, I find that for the reasons set out at [263]-[318] above, Mr Nyoni would not succeed in establishing that AHPRA and the Board acted with malice in publishing and continuing to publish, after Mr Nyoni’s letter of 22 August 2014, the first condition.

INJURIOUS FALSEHOOD

322    Mr Nyoni also brought a claim in respect of the publication of the first condition in the tort of injurious falsehood. The elements of the tort of injurious falsehood adapted to this case are:

(a)    the publication of a false statement pertaining to Mr Nyoni’s business as a pharmacist;

(b)    the publication was made to a third party;

(b)    the statement or publication was made with malice on the part of AHPRA and the Board; and

(d)    Mr Nyoni suffered actual damage as a consequence of the publication.

323    Mr Nyoni bears the onus of proof of establishing each of the elements of the tort.

324    For the reasons which I have given at [181]-[184] above, I find that the publication of the first condition gave rise to the imputations relied on by Mr Nyoni and that the imputations pertained to Mr Nyoni’s business as a pharmacist.

325    It is accepted that the imputations were false.

326    It was also accepted that the publication of the first condition was published to a third party.

327    However, in my view, for the reasons given at [263]-[318] above, Mr Nyoni has failed to establish that the impugned statements or the publication of the impugned statements were made with malice. At its highest, the evidence is that the statements were made and published by reason of the inadvertence or ignorance of the respondents, and it is recognised that conduct of that kind is insufficient to give rise to liability for injurious falsehood.

328    In the case of Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191, officers of the RSPCA made disparaging comments about electronic dog collars which were used to train dogs not to bark. The plaintiff, Orion Pet Products, was the manufacturer of the impugned dog collars. Those adverse comments were made orally on radio and on the RSPCA website as well as to a journalist who published the comments. The question was whether the comments which were made by the RSPCA officers were made with malice.

329    In relation to the comments made by the RSPCA officers, Weinberg J said at [220] that:

[it] might be said that he acted carelessly in telling Mr Papps [a journalist] that an Innotek collar had been tested and could inflict a 3,000 volt shock. Carelessness is not, however, tantamount to recklessness, and it is certainly insufficient to give rise to liability for injurious falsehood.

330    Further, for the reasons given at [121]-[168] above, I find that Mr Nyoni has failed to establish that he suffered actual loss by reason of the publication in the national register and on the AHPRA website of the first condition.

331    It follows that Mr Nyoni’s claim in injurious falsehood is dismissed.

332    It follows that Mr Nyoni has failed to establish any of the three causes of action upon which he relied for the relief which he claimed, and which comprised the basis for the statement of issues before this Court.

333    It also follows that Mr Nyoni’s application filed on 27 November 2014, is dismissed with costs.

Associate

Dated:    17 April 2018