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

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

The application failed because the publication of the first condition by the Board and AHPRA was regulatory conduct performed under statutory duties and not conduct in trade or commerce; although the first condition conveyed defamatory and false imputations about Mr Nyoni, the Board was protected by absolute privilege and both respondents were protected by the public document defence; and Mr Nyoni did not prove malice or actual loss required for injurious falsehood or damages.

Jurisdiction
Australia
Judgment Date
17 April 2018
Procedural Posture
Application Alleging Misleading or Deceptive Conduct Under S 18 of the Australian Consumer Law, Defamation, and Injurious Falsehood Arising From Publication of a Condition on a Pharmacist's Registration. / Final Judgment After Trial; Proceeding Against the Chief Executive Officer of the Department of Health Had Previously Been Summarily Dismissed Under S 31 a of the Federal Court of Australia Act 1976 (cth).
Outcome
Application dismissed with costs.
Legal Topics
['misleading or Deceptive Conduct' 'conduct in Trade or Commerce' 'defamation Defences' 'absolute Privilege' 'public Document Defence' 'qualified Privilege' 'injurious Falsehood' 'malice' 'national Register of Health Practitioners' 'pharmacist Registration Conditions']
['consumer Law' 'defamation' 'torts' 'health Practitioner Regulation'] ['misleading or Deceptive Conduct' 'conduct in Trade or Commerce' 'defamation Defences' 'absolute Privilege' 'public Document Defence' 'qualified Privilege' 'injurious Falsehood' 'malice' 'national Register of Health Practitioners' 'pharmacist Registration Conditions']

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Procedural Posture

Application Alleging Misleading or Deceptive Conduct Under S 18 of the Australian Consumer Law, Defamation, and Injurious Falsehood Arising From Publication of a Condition on a Pharmacist's Registration. / Final Judgment After Trial; Proceeding Against the Chief Executive Officer of the Department of Health Had Previously Been Summarily Dismissed Under S 31 a of the Federal Court of Australia Act 1976 (cth).

Legal Issues

  1. 1 ["Whether the publication by the Pharmacy Board of Australia and AHPRA of the first condition on Mr Nyoni's pharmacist registration was conduct in trade or commerce for the purposes of s 18 of the Australian Consumer Law." 'Whether the first condition conveyed defamatory imputations that Mr Nyoni had self-administered Schedule 8 drugs without a prescription, had a propensity to do so, had an addiction to Schedule 8 drugs, or was unfit to hold a licence to dispense Schedule 8 drugs for those reasons.' "Whether the Board's proceedings under s 178 of the Health Practitioner Regulation National Law were quasi-judicial proceedings attracting absolute privilege." 'Whether the publication was protected by the public document defence under s 28 of the Defamation Act 2005 (WA).' 'Whether the respondents acted with malice in publishing or continuing to publish the first condition.' 'Whether Mr Nyoni proved actual loss caused by the publication of the first condition.']

Ratio Decidendi

The application failed because the publication of the first condition by the Board and AHPRA was regulatory conduct performed under statutory duties and not conduct in trade or commerce; although the first condition conveyed defamatory and false imputations about Mr Nyoni, the Board was protected by absolute privilege and both respondents were protected by the public document defence; and Mr Nyoni did not prove malice or actual loss required for injurious falsehood or damages.

Court Disposition

Application dismissed with costs.

Orders

  • ["The applicant's application filed on 27 November 2014 is dismissed." "The applicant is to pay the first and third respondents' costs, as agreed or assessed."]