Pharmacist awarded damages over council’s ‘targeted malice’

While the Federal Court found in the pharmacist’s favour, the amount awarded in damages falls far short of his desired $100 million

WA pharmacist Emson Nyoni has been awarded $30,000 in damages after the Federal Court of Australia ruled his local council had unlawfully used its position to attempt to oust Mr Nyoni from his pharmacy.

Mr Nyoni ran the only pharmacy in Kellerberrin, in the central wheatbelt of WA, from 2003 to 2013.

He had reportedly been the subject of some complaints made by members of the public to employees of the local council.

During this period both the Department of Health and the Pharmaceutical Council of Western Australia carried out inspections of the pharmacy but did not bring any disciplinary proceedings against Mr Nyoni as a result.

On 14 October 2010 a local electrician disconnected the electricity to Mr Nyoni’s pharmacy premises, despite having not been authorised to do this by the energy company.

The electrician immediately informed the Shire of Kellerberrin’s CEO at that time, who then sent an official email informing the Pharmaceutical Council about the disconnection.

After receiving this email, the Pharmaceutical Council consequently sent a warning to Mr Nyoni informing him that continuous supply of electricity to registered pharmacy premises was essential to the provision of a professional pharmacy service.

The Department of Health also wrote to Mr Nyoni informing him that in light of the disconnection – as well as two March 2010 disconnections due to unpaid electricity bills – that any future disconnection would result in potential suspension of his pharmacy licence.

It was found by a trial judge that the electrician’s intention in sending the email to the Shire CEO was to persuade the Department and the Pharmaceutical Council to act against Mr Nyoni as a consequence of the disconnection.

While the CEO of the local council at that time—who had sent the email to Pharmaceutical Council on 14 October 2010 —was unaware that the disconnection had not been lawfully authorised, a Federal court judge found the email he sent had been “calculated to encourage the Department and the Pharmaceutical Council to form these negative reputational views about Mr Nyoni and his ability to run an adequate service in Kellerberrin”.

In his decision handed down this month, Justice Michael Barker said he had “no doubt that Mr Nyoni would have suffered a considerable degree of distress on receiving the correspondence from the Department and the Pharmaceutical Council”, as its terms constituted a “very blunt warning”.

“If the Department and the Pharmaceutical Council, by one means or another, could in regulatory terms close down Mr Nyoni’s business … then he would stand to lose his immediate livelihood,” found Justice Barker.

“The understanding of the Department plainly was that he was responsible for the disconnection, when in fact he was not,” he said, adding that the Shire had not taken steps to rectify the understanding of the Department or the Pharmaceutical Council when it was discovered that the disconnection of electricity to the pharmacy had not been authorised.

Justice Barker found that the Shire, by way of its CEO at that time, had sent the email to Pharmaceutical Council in a way that construed “targeted malice”.

Mr Nyoni had sought “substantial damages” of $100,000,000 for misfeasance.

Justice Barker ruled that general damages be awarded in respect of Mr Nyoni’s reputational damage in the sum of $15,000 to be paid by the Shire and its CEO at the time of the conduct.

He also ordered that they pay Mr Nyoni $5,000 by way of aggravated damages, and an additional $10,000 in exemplary damages to be paid to Mr Nyoni.

However he ordered a stay on the order pending further orders, with submissions on costs to be made. 

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