Nyoni v Shire of Kellerberrin

Federal Court of Australia|2018-10-19|Before: Barker J

The first and second respondents pay the applicant damages in the total sum of $30,000, comprising $15,000 general damages, $5,000 aggravated damages and $10,000 exemplary damages, to be paid by them on a joint and several basis.
There be a stay on the operation of order (1) pending further order of the Court.
The first and second respondents file any further affidavit material and submissions concerning the question of costs by 4pm 26 October 2018.
The applicant to file and serve any responsive submissions on the question of costs by 4pm 2 November 2018.
The Court will deal with the question of costs on the papers unless any party indicates in writing to the Associate of Barker J by 4pm 7 November 2018 that they wish to be heard orally on the question of costs in the event of which the Court will list the question for an oral hearing. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 This judgment concerns the damages payable by the Shire of Kellerberrin and Mr Darren Friend to Mr Nyoni as a result of the wrong suffered by Mr Nyoni, known as the tort of misfeasance in public office, and committed by Mr Friend, who was, at material times, the Shire's Chief Executive Officer (CEO) and by the Shire through the agency of, Mr Friend as its CEO. 2 The damages are payable as a result of the following finding of a majority of the Full Court of this Court in Nyoni v Shire of Kellerberrin and Others (2017) 248 FCR 311 at [118]; [2017] FCAFC 59 (joint judgment): In our opinion, based on the primary judge's findings of fact, Mr Friend committed the tort of misfeasance in public office in acting as he did on 14 and 15 October 2010 by sending his email and assisting Mr Mitchell to produce and despatch his letter to convey that Mr Nyoni was at fault for the pharmacy's disconnection. In so acting Mr Friend was also acting as the Shire so as to make it also liable for misfeasance in public office: Dunlop [1982] AC at 172F-G; [1981[ 1 NSWLR at 84C-D; Hamilton at 127-129. Their intention, of injuring Mr Nyoni in doing so, entailed that their exercise of a public power was done for an ulterior and an improper purpose and, so, was a misuse of their powers: Futuris [11]. It was targeted malice. 3 The majority added, at [119]: Given that the primary judge had the advantage of seeing and hearing the witnesses over a lengthy trial, we consider that we should remit the assessment of damages, including aggravated and or exemplary damages, to his Honour which he should be able to do without the need for further submissions. 4 The Full Court thus ordered on 13 April 2017, that: 1. The appeal be allowed in part as against the first and second respondents and dismissed as against the third, fourth and fifth respondents. 2. The orders made on 23 November 2015 be varied by: (a) in order 2, deleting 'first' and substituting 'third'; (b) in order 3, deleting 'the first respondent's costs and the costs of the second to' and substituting 'the costs of the third and'. 3. The proceedings be remitted to the primary judge to assess damages and questions of costs as between the applicant and first and second respondents. 4. The first and second respondents pay 50% of the appellant's costs. 5. The appellant pay the third and fourth respondents' costs, and the costs, if any, of the fifth respondent's submitting appearance. 5 I should also note that an application by the Shire to the High Court of Australia for special leave to appeal from the judgment and orders of the Full Court was dismissed with costs on 16 February 2018. See Shire of Kellerberrin v Nyoni & Ors [2018] HCATran 027(P18/2017). 6 The primary judge referred to in the Full Court's joint judgement, Siopis J, retired from the Court before his Honour could conduct the required assessment of damages and the matter of the damages assessment was then allocated to me by the Chief Justice of this Court. 7 The question now before me is what damages should be ordered.

Some procedural background 8 The Chief Justice caused the matter of the assessment of the damages to be allocated to me on or about 9 March 2018. At that point, Mr Nyoni was represented by solicitors in the matter, who had instructed counsel to appear on his behalf at the hearing of the special leave application in the High Court. 9 Those solicitors wrote to the Court by letter dated 14 March 2018 requesting the primary proceeding to be remitted for assessment of damages and the questions of costs between Mr Nyoni and the Shire and Mr Friend. 10 On 30 April 2018, I made the following orders by consent of those parties: 1. The applicant file and serve his outline of submissions on the remitted question by 25 May 2018. 2. The first and second respondent file and serve any outline of submissions in response by 22 June 2018. 3. The matter be listed for a further case management hearing on 17 July 2018 at 11.15am. 11 Following the making of those orders, Mr Nyoni's lawyers went off the record and he became self-represented. Subsequently, Mr Nyoni failed to comply with the order that his submissions be filed by 25 May 2018. 12 I then listed the matter for a case management hearing on 12 June 2018 to ascertain the best way forward. 13 At the case management hearing on 12 June 2018, at which Mr Nyoni personally appeared by telephone, and the relevant respondents appeared by counsel, Mr Nyoni indicated that he was still hopeful of being represented by a lawyer on the assessment of damages. 14 I indicated then that the Court had in mind a hearing on the assessment of damages in September/October 2018, and that I was open to considering submissions as to whether there should be further evidence adduced or cross-examination of witnesses, given my lack of familiarity with the evidence in the matter. 15 Mr Nyoni indicated that he was intending to see lawyers in July, as a result of which I suggested that the case management hearing be rescheduled for about mid-July 2018, still with a view to an assessment hearing in about September or October 2018. Mr Nyoni, at least provisionally, agreed with that way of proceeding. 16 Counsel for the respondents raised the question whether a further hearing would be required or whether there would be any entitlement by Mr Nyoni to adduce further evidence, submitting, in effect, that the trial before Siopis J was complete, and referring to what the majority of the Full Court said at [119] and how the Full Court did not appear to comprehend the need for further submissions. 17 I indicated then that it was important that I become fully apprised of what the circumstances were that would govern the assessment of damages and whether the matter could be dealt with on the papers; whether there was any scope for the Court to entertain an application for further evidence to be adduced; and the like. 18 In the circumstances, where Mr Nyoni was self-represented, I determined that an appropriate way forward was to invite initial observations on these questions from the respondent parties as to what, in their view, the proceeding by way of assessment of damages should comprise. I indicated that I would conduct a further case management hearing on 17 July 2018, in the light of such observations, to consider the best way forward. 19 As a result, on 12 June 2018, I made the following orders: 1. The case management hearing be adjourned to 17 July 2018 at 11.15am. 2. The first and second, third and fourth respondents either jointly or separately file and serve submissions addressing the questions as to how the damages assessment might proceed in the Court by 13 July 2018. 20 On 17 July 2018, the further case management hearing was conducted. Mr Nyoni again personally participated, by telephone. The first and second to fourth respondents, respectively, appeared by counsel and referred to the submissions they had filed on the questions I had raised. Mr Nyoni said that he was not given "permission" to make submissions and so he had not prepared any. Nor did he have any substantive oral submissions to make on the questions I had raised. He also indicated that he had not obtained the services of another lawyer to represent him in the matter. 21 I then indicated to the parties that, having considered the matter further, including the findings of Siopis J in his primary judgment (Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294) about the expert evidence bearing on the questions of loss, as well as what the Full Court had said about the primary judge being able to make an assessment from the materials in the Court and his assessment of the witnesses, I felt able to proceed to deal with the assessment of damages at a hearing without the need for further evidentiary materials. I indicated I did not think I should deal with the question on the papers and would give the parties the opportunity to file written submissions before the hearing, as well as hearing from the parties orally at the hearing. 22 As a result, on 17 July 2018, I made the following orders: 1. The hearing for assessment of damages in accordance with the direction of the Full Court be listed for 10.15am on Tuesday, 11 September 2018. 2. The respondents file submissions as to what damages, if any, should be paid by 14 August 2018. 3. The applicant file submissions as to what damages he says should be paid by 28 August 2018. 4. The respondents file any submissions in reply by 4 September 2018. 23 The Shire and the second, third and fourth respondents respectively duly filed submissions on assessment of damages pursuant to the orders I made on 17 July 2018, but Mr Nyoni failed to do so. 24 However, on 29 August 2018, Mr Nyoni filed a document entitled "Notice of Applicant's Ex Parte Application to the High Court of Australia for the Assessment of Remitted Damages from the Full Court of the Federal Court of Australia of 17 April 2017 and from the High Court of Australia of 16 February 2018". 25 By this "Notice", Mr Nyoni states: Introduction 1. Applicant has made an Ex Parte Application to the High Court of Australia in proceeding P42/2018 seeking remedies for the damages ordered by the Full Court of the Federal Court of Australia on 17 April 2017 and High Court on 16 February 2018. 2. This follows the failure of this Court to address those orders in the interests of justice. The respondents have instead totally departed from the orders made by the Full Court and the High Court and Barker J has allowed the matter to deteriorate irreparably for 16 months after the first orders were made and thus leaving the applicant in an extraordinarily desperate situation. 3. Applicant submits that he has suffered for over a decade and continues to suffer in the hands of the same respondents and this proceeding WAD316/2010, in applicant's opinion, is defunct for the purposes of assessing the damages ordered by the Courts above. Chronology 4. On 23 November 2015, the primary judge Siopis J handed down his decision in Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294. 5. The applicant appealed the decision of Siopis J and the Full Court of the Federal Court Australia handed down its decision on 17 April 2017, allowing damages for the applicant for the tort of misfeasance in public office. The matter was remitted to the primary judge for assessment of damages without the need for further submissions. 6. The first respondent filed an Application for Special Leave to Appeal to the High Court of Australia on four grounds and the High Court dismissed their application with costs. 7. The primary judge did not assess the remitted damages on 16 February 2018, but chose instead that damages be remitted to the Honourable Justice Barker who had not been the primary judge. 8. On 5 and 30 April; 12 June and 17 July 2018, Barker J made orders purporting to be assessment of damages pursuant to the orders of the Full Court of the Federal Court of 17 April 2017. In summary, his Honour's orders are about asking the respondents to determine the damages they would like to pay. This is in addition to the problem created at the outset by departing from the orders of the Full Court that the damages determined without any further submissions. 9. On each of 13 July and 14 August 2018 the respondents filed their submissions in which they underlined their refusal to address any of the orders given by the Full Court and confirmed by the High Court. The respondents sought, contrary to the orders, to separate the Shire from Darren Friend, thus denying the misfeasance cause of action. The respondents also sought orders for payment of alleged costs from the applicant without stating what damages the applicant was eligible to receive. This created an enormous problem because the applicant is seeking $100,000,000 (one-hundred-million dollars) in damages for misfeasance and not the nominal damages being asserted by the respondents. 10. As of today, 498 days have passed since the Full Court of the Federal Court of Australia ordered damages to be paid to the applicant. Since then, the respondents have used every trick in the book to avoid paying any damages including the misconceived Application for Special Leave to Appeal to the High Court by the first respondent and their refusal to respect the Full Court decision and the High Court decision that followed. The applicant submits that he has suffered for over a decade from the harm done by these respondents and continues to suffer while the respondents are forever looking for tricks to pervert the course of justice. 11. In the circumstances, the applicant has had no option but to seek the assistance of the High Court in determining his rights in a matter which has been determined in his favour with no compensation given after such a long time. 12. This court has failed to address the orders which were remitted to the trial judge and, as a consequence, the applicant cannot be subjected to any further torture and will await the decision from the High Court without the current proceeding WAD316/2018 which has completely been wrecked. Conclusion 13. On the basis that the determination of damages is now in the hands of the High Court, Applicant will not participate in any proceedings in the Federal Court. 26 As may be seen, Mr Nyoni indicated that he would not participate in the proceedings in the Federal Court, but did have an expectation he should be paid substantial damages in relation to his claims - to the extent of $100,000,000. 27 The Court has not been provided with any process in a High Court of Australia proceeding numbered P42/2018. It is difficult to understand how there could be any relevant proceeding in the High Court of Australia concerning the assessment of damages in light of the dismissal by the High Court of the special leave application of the Shire and the extant order of the Full Court of this Court requiring this Court (me) now to make that assessment of damages. 28 It is apparent that Mr Nyoni feels aggrieved that he has not succeeded in obtaining an award of damages to this point and that he considers this proceeding, WAD316/2010, to be "defunct" for the purpose of assessing the damages ordered by the Full Court. 29 Needless to say, this proceeding is not defunct and I have the obligation, pursuant to the order of the Full Court, to assess the relevant damages. It is a matter of regret that Mr Nyoni has chosen not to participate in the hearing. 30 In the event, the hearing for assessment of damages came on before me for hearing on 11 September 2018 at 10:15am. Mr Nyoni failed to attend the hearing, notwithstanding that he had ample notice of the hearing and had participated, by telephone, in earlier case management hearings conducted by me with respect to the need for a hearing on the question of assessment of damages, or whether the assessment could be conducted "on the papers". 31 In the circumstances, I was obliged to conduct the hearing on 11 September 2018 in Mr Nyoni's absence and thereafter to proceed, as best I could, on the materials before the Court.

Factual circumstances in which damages are to be assessed 32 As explained in the joint judgment of the Full Court, Mr Nyoni was a pharmacist who migrated to Australia from Zimbabwe and in 2003 bought and operated until 2013, the only pharmacy in Kellerberrin, in the central Wheatbelt of Western Australia. He brought proceedings against the Shire, two of its successive CEOs, Mr Frank Peczka and Mr Friend, its President, Mr Stan McDonnell, and an electrical contractor, Mr Peter Mitchell. 33 The primary judge, following a lengthy trial in July 2014, delivered a judgment on 23 November 2015, dealing with five substantive causes of action advanced against these respondents by Mr Nyoni, namely that: (1) Mr Peczka and the Shire acted in concert with Mr Robert Bateman, a senior investigating officer of the Health Department, in trespassing upon Mr Nyoni's pharmacy property in October 2007; (2) the Shire, by one or more of its agents or officers, had made disparaging statements about Mr Nyoni's business and, thereby, engaged in misleading or deceptive conduct and/or malicious falsehood; (3) the Shire, Mr Friend and Mr McDonnell were liable as joint tortfeasors with Mr Mitchell in trespassing upon Mr Nyoni's property in the course of disconnecting the electricity supply to Mr Nyoni's pharmacy in March 2010 and in October 2010 (2010 trespass claim); (4) the conduct of Mr Friend and Mr McDonnell in relation to the disconnection of the electricity supply to Mr Nyoni's pharmacy on 14 October 2010, amounted to misfeasance in public office (misfeasance claim); and (5) the Shire engaged in misleading or deceptive conduct by publishing the minutes of a Shire Council meeting which disparaged Mr Nyoni's pharmacy business. 34 The primary judge found in Mr Nyoni's favour on one aspect of the 2010 trespass claim. He held that Mr Mitchell had committed a trespass at the pharmacy on 14 October 2010 when he intentionally entered and remained on the premises without consent of owner or lawful authority and, in the course of which, he disconnected the electricity without any lawful basis to do so. His Honour awarded Mr Nyoni $12,000 in damages against Mr Mitchell that included $4,000 in aggravated damages, and ordered Mr Mitchell to pay Mr Nyoni's costs in relation to the issues between them. 35 However, his Honour dismissed with costs all of Mr Nyoni's claims against the Shire and Messrs Peczka, Friend and McDonnell, including the balance of the 2010 trespass claim. 36 On appeal to the Full Court, the Full Court by majority dismissed all grounds of appeal against these findings, save in respect of the misfeasance claim. 37 At [43]-[52] in the joint judgment, their Honours summarised the findings of the primary judge about Mr Friend's email that he sent on 14 October 2010 to Mr Bateman and Mr Timothy van Bronswijk, and copied to Mr McDonnell, six councillors and three other individuals, including Mr Raymond Griffiths. Their Honours, at those paragraphs, stated: 43 In the meantime, at 3:31pm on 14 October 2010, Mr Friend sent an email to Messrs Bateman and van Bronswijk, and copied it to each of the elected members of the Shire Council, including Mr McDonnell, and three Council officers, that stated: Subject: PHARMACY POWER Tim/Robert I have been advised by Peter Mitchell, the local electrician, that he is cutting the power at both the pharmacy and Nyoni residence on Bedford Street this afternoon. I assume I will see you both tomorrow? Darren (Emphasis added.) 44 Mr van Bronswijk replied at 4:04pm as follows: Please arrange to have the electrician confirm to me in writing on his letterhead (electronically or by facsimile) that he has carried out disconnection of the power supply to both premises once he has done so. 45 His Honour found that Mr van Bronswijk wanted that confirmation for the purposes of pursuing disciplinary action against Mr Nyoni. 46 After effecting the disconnections, Mr Mitchell attended the Shire offices later on 14 October 2010 and co-operated with Mr Friend in composing a letter that was then produced and printed in the Shire offices, signed there by Mr Mitchell and sent, by or under the direction of Mr Friend, from the Shire offices to Mr van Bronswijk, later on the same day. Mr Mitchell's letter dated 14 October 2010 had his trading name in bespoke letterhead and appeared to be professionally formatted and presented. It read: To Whom It May Concern Re disconnection of power to both sites owned by Chemist one being house and other being owner's business. Meter number for house is … disconnected at 3.01 pm on 14 October Meter number for chemist shop is … disconnected at 3.32 pm on 14 October Please note this is not the first time this has occurred on the same premises. (Emphasis added.) 47 At about 9:45am on 15 October 2010, Mr Mitchell reconnected the electricity supply to the pharmacy. Mr Friend advised Mr van Bronswijk of this bland fact by email at 10:58am. His Honour found, however, that no one, including Mr Friend, advised Mr van Bronswijk or the Department of Health that Mr Nyoni was not at fault for the electricity supply to the pharmacy being disconnected. The primary judge found that Mr van Bronswijk was left with the false impression that Mr Nyoni had been at fault. 48 Thus, the registrar of the Pharmaceutical Council, immediately, before its statutory dissolution later on 15 October 2010, wrote to Mr Nyoni informing him that the Council considered that the continuous supply of electricity to registered pharmacy premises was essential to the provision of a professional pharmacy service. Dr Robertson of the Department of Health wrote to Mr Nyoni on 19 October 2010 informing him that, in light of the 14 October 2010 disconnection of electricity and the earlier one between 15 and 17 March 2010, any future disconnection would give rise to consideration of whether his pharmaceutical chemist licence for the pharmacy should be suspended. 49 His Honour found that Mr Mitchell's purpose in advising the Shire in advance, on 14 October 2010, of the impending disconnection was to assist the Shire in demonstrating to regulatory authorities that, contrary to Mr Nyoni's assertions, the latter did not run a 'perfect pharmacy'. The primary judge found: Mr Friend's evidence that the first time he had seen the letter was when it was shown to him in the witness box, is highly implausible, and I reject that evidence. It is inconceivable that Mr Friend who had since January 2010, been engaged in a continuing campaign to cause the regulatory authorities to take disciplinary action against Mr Nyoni would not have examined the letter before it was dispatched from the Shire offices so as to ensure that Mr van Bronswijk's request for confirmation of the disconnection of the pharmacy's electricity, had been complied with. (Emphasis added.) 50 His Honour also found: I find that Mr Friend's intention in sending the email to Mr Bateman and Mr van Bronswijk advising of the impending disconnection of the electricity to the pharmacy, and in procuring the production and dispatch to Mr van Bronswijk of the letter of confirmation signed by Mr Mitchell, was to persuade the Pharmaceutical Council to consider taking disciplinary action against Mr Nyoni. The same is true in relation to the dispatch of the letter of confirmation to the Health Department. This action was part of a continuing campaign by Mr Friend and the Shire to persuade the various bodies which regulated the practice of a pharmacist, either to withhold benefits from, or impose sanctions against, Mr Nyoni so that Mr Nyoni would cease operating the Kellerberrin pharmacy and would be replaced by another pharmacist. That this was Mr Friend's and the Shire Council's objective from, at the latest, early January 2010, is obvious from the activities engaged in by Mr Friend and the Shire which are described in [90] to [137] above. The closing submissions of the second, third and fourth respondents, correctly acknowledge this to be the case. (Emphasis added.) 51 The primary judge found that on 14 October 2010, Mr Mitchell trespassed on the pharmacy premises and was liable in damages because he had no lawful authority to enter them. As noted earlier, his Honour assessed that Mr Mitchell should pay $12,000 in damages, which included $4,000 in aggravated damages to compensate for the affront to Mrs Nyoni, and thereby to her husband's right to enjoy exclusive possession, in the way that Mr Mitchell carried out that trespass. He found that Mr Mitchell acted in a manner that was high-handed and disrespectful. 52 However, his Honour found that Mr Mitchell's trespass had not involved, or been authorised or directed by, Mr Friend, even though Mr Mitchell had informed Mr Friend beforehand of what he proposed to do. He also found that Mr McDonnell had nothing to do with the disconnection of power to the pharmacy on 14 October 2010. Accordingly, the primary judge dismissed Mr Nyoni's claims that Mr Friend and Mr McDonnell were joint tortfeasors on that occasion. 38 In the joint judgment, at [75], their Honours stated that Mr Friend acted maliciously, on the primary judge's findings, in sending his 14 October 2010 email and causing Mr Mitchell's letter to be produced and sent to the two regulators. They said that the harm that Mr Friend sought to bring about, using his position as CEO of the Shire in an official email from him in that office, was to give the Department and the Pharmaceutical Council of Western Australia a basis to act against Mr Nyoni to undermine his ability to act as a professional, licensed and qualified pharmacist at the pharmacy. 39 At [85], their Honours found that for the purposes of these proceedings, Mr Friend's malicious intention, as found by the primary judge, should be imputed to his employer, the Shire. 40 In the course of a discussion of legal authorities explaining the tort of misfeasance in public office, at [90], their Honours cited the decision of the Supreme Court of Canada in Odhavji Estate v Woodhouse [2003] 3 SCR 263 and discussed the judgment of Iacobucci J (for the Court). They noted that his Lordship identified the essential ingredients of the tort as falling into two categories: Category A involved a public officer whose conduct was specifically intended to injure a person or class of persons; and Category B involved a public officer who acted with knowledge both that he, she or it had no power to do the act complained of and that act was likely to injure the plaintiff. 41 At [94] in the joint judgment, their Honours said that Iacobucci J's Category A is what Lord Steyn called "targeted malice" in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1. They also referred to the use of the "targeted malice" expression in authorities of this Court, including Sanders v Snell (No 2) (2003) 130 FCR 149 at [108]; [2003] FCAFC 150 (Black CJ, French and von Doussa JJ). 42 In the joint judgment at [100], their Honours referred to Watkins v Secretary of State for the Home Department [2006] 2 AC 395, where the House of Lords rejected a claim by a prisoner that prison officers and the Home Secretary had committed misfeasance in public office when three prison officers maliciously opened letters to the prisoner from his lawyers. That was, their Honours said, because their Lordships found that the prisoner could not establish that he had suffered "material damage", however unlawfully the three officers had acted. 43 Their Honours then said, at [101], that there was a distinction between that situation and the present case involving Mr Nyoni, where Mr Friend targeted his malice to have the two regulators take steps to cause Mr Nyoni to cease operating his pharmacy by raising matters with them that suggested that Mr Nyoni was unfit to properly conduct, or incapable of properly conducting, his profession or the business of a pharmacist. Their Honours added: The making of such an allegation by a public officer or body, such as Mr Friend or the Shire, to another government agency or authority with regulatory powers over a person in Mr Nyoni's position should be presumed (as it would in cases of slander) to cause sufficient material or actual damage to support the action of misfeasance in public office. 44 At [102], their Honours stated: In substance, Mr Friend intended, maliciously, as his Honour found, to cause both economic and reputational harm to Mr Nyoni. There is no reason why the law should ignore the reality that a professional person must suffer some real, material harm, when a public officer makes a complaint about the person to a regulator of his or her profession. 45 In the joint judgment, their Honours then found that Mr Friend acted, in sending his email of 14 October 2010 and causing Mr Mitchell's letter to be sent, with the intention that these would cause other public authorities to act on their powers to suspend or prevent Mr Nyoni from continuing to practise as a pharmacist or to dispense essential medicines. They observed that that was, as the primary judge found, Mr Friend's intention. 46 Ultimately, at [115]-[119], in the joint judgment, their Honours held: 115 On his Honour's findings, Mr Friend intended that his actions on 14 October 2010 would bring about, at least, such a result, namely that the two regulators would treat the disconnection of electricity to the pharmacy as a matter adverse to Mr Nyoni's entitlement to continue to operate it. Importantly, as noted above, his Honour found that no one, including Mr Friend, had advised Mr van Bronswijk or the Department that Mr Nyoni was not at fault for the electricity being disconnected and that Mr van Bronswijk was left with the impression that Mr Nyoni had been at fault. 116 As a consequence, the two regulators maintained uncorrected on their records in relation to Mr Nyoni and the pharmacy, the false report, that Mr Friend had sent or caused Mr Mitchell to make, that Mr Nyoni was responsible for the disconnection of the pharmacy that would be used against him should there be a repetition. That result advanced the campaign against Mr Nyoni that Mr Friend and the Shire had been pursuing. 117 Mr Friend's actions were not isolated or unexplained. He had been acting on the instructions and with the authority of the Shire for months, in expressing complaints about Mr Nyoni to the Department, as his 6 January 2010 letter to its Minister showed, and the Pharmaceutical Council. 118 In our opinion, based on the primary judge's findings of fact, Mr Friend committed the tort of misfeasance in public office in acting as he did on 14 and 15 October 2010 by sending his email and assisting Mr Mitchell to produce and despatch his letter to convey that Mr Nyoni was at fault for the pharmacy's disconnection. In so acting Mr Friend was also acting as the Shire so as to make it also liable for misfeasance in public office: Dunlop [1982] AC at 172F-G; [1981] 1 NSWLR at 84C-D; Hamilton at 127-129. Their intention, of injuring Mr Nyoni in doing so, entailed that their exercise of a public power was done for an ulterior and an improper purpose and, so, was a misuse of their powers: Futuris [11]. It was targeted malice. 119 Given that the primary judge had the advantage of seeing and hearing the witnesses over a lengthy trial, we consider that we should remit the assessment of damages, including aggravated and or exemplary damages, to his Honour which he should be able to do without the need for further submissions. 47 This Court is now required to make the relevant assessment of damages. That means the Court should consider whether (1) general damages; (2) aggravated damages; and/or (3) exemplary damages should now be awarded in favour of Mr Nyoni. 48 It is a matter of regret that Mr Nyoni elected to not participate in the assessment of damages hearing that I conducted. As I have indicated above, I consider I have no real alternative in the circumstances but to complete the hearing. Plainly, Mr Nyoni is entitled to an award of damages, based on the Full Court's orders and reasons, that is real in its quantum and not nominal in the ordinary, minimalist sense of the word. The Shire acknowledges that an award of general damages should be made but submits that aggravated and/or exemplary damages are not appropriate in the circumstances of this case. 49 The second, third and fourth respondents (Mr Friend, Mr McDonnell and Mr Peczka respectively), to the extent that they are all affected by the award of damages against the Shire, similarly acknowledge that general damages may be awarded but deny that there is any case for the award of aggravated and/or exemplary damages. 50 These second to fourth respondents, and the Shire, also seek orders that costs orders in their favour against Mr Nyoni should be satisfied prior to the payment of any damages to him, relating to the misfeasance in public office claim. That, however, is a question for later following the assessment of damages.

The respondents' contentions on damages 51 The respondents note that the primary judge expressly dealt with the question of damages at [464] and following of his primary judgment and rejected the submission that Mr Nyoni had suffered any economic loss and damage. 52 For the reasons given at [470] and [471], his Honour placed no weight on the expert report of the expert witness, Mr Van Der Linden, called by Mr Nyoni. 53 Similarly, his Honour, at [472]-[476], placed no weight on the evidence of Ms Goodall-Smith, called by Mr Nyoni, that related to the question of whether or not Mr Nyoni had suffered emotional distress as the result of the "unlawful conduct" of the respondents. 54 In short, Ms Goodall-Smith, a clinical psychologist, explained that her dealings with Mr Nyoni were over a telephone interview and she was not able to do any objective assessments. Her assessment was incomplete. 55 As a result, there was no relevant evidence before the judge concerning economic loss, or other damage of a psychological or emotional kind, apart from Mr Nyoni's assertions which were not supported by the expert witnesses he called on those topics. 56 The Shire further submits that no economic loss can be identified in any event as having resulted from the sending of the 14 October 2010 email and this should not be considered surprising because: (1) the Pharmaceutical Council was statutorily dissolved on the same day as the email was sent; (2) the Department took no action against Mr Nyoni on account of the email; and (3) in 2013, Mr Nyoni had his authority to store and supply Schedule 8 substances revoked due to matters unrelated to the disconnection of the power supply to the pharmacy. 57 The other respondents support those submissions. 58 Thus, the Shire submits that given there is no evidence of actual economic loss upon which to base an award of compensatory damages, the Court should approach the award of damages as if the cause of action was actionable per se, consistent with the Full Court's finding that, as on an assessment of damages for defamation, damage to reputation could be presumed. 59 In that regard, the Shire refers to Carson v John Fairfax & Sons Limited (1993) 178 CLR 44; [1993] HCA 31 where the High Court explained that the award of damages for defamation has three main purposes: (1) consolation for the personal distress and hurt caused to a plaintiff by publication; (2) reparation for the harm done to the plaintiff's personal and, if relevant, business reputation; and (3) vindication of the plaintiff's reputation. 60 The Shire contends that, based on Carson, it is understood that the three purposes overlap considerably in reality and ensure that the amount of a verdict is the product of a mixture of inextricable considerations. 61 At the same time the Shire submits, consistent with authority, that the award of damages must turn on the facts of each case and that a simple comparison to previous awards is of limited value. 62 The Shire also submits that in considering the gravity of reputational harm, and thus an award of damages necessary for consolation and vindication, both the nature of the imputations and the breadth of publication are relevant. Publication to a small number of recipients may limit the quantum of damages. 63 In that regard, the Shire contends for a particular understanding of the factual circumstances in which the 14 October 2010 email was sent and the general context in which, it says, damages should be assessed here. In this regard, the other respondents broadly support the Shire's submissions. 64 The Shire submits that the relevant facts, drawn from the primary judgment are as follows (footnotes omitted): 20. The Shire is the local authority for the town of Kellerberrin. Mr Nyoni operated the Pharmacy in Kellerberrin between 2003 and 2013. The Second Respondent was the Chief Executive Officer of the Shire in October 2010. 21. Mr Nyoni's conduct in operating the Pharmacy was regulated by the DoH [Department] and the PCWA [Pharmaceutical Council], until the PCWA's statutory dissolution on 15 October 2010. 22. Between 2007 and 2010, there were from time to time complaints made by members of the public to employees of the Shire, the DoH and the PCWA about Mr Nyoni's professional practice standards, and the state of cleanliness of the Pharmacy. 23. The Trial Judge found that, during the years leading up to 2010, it was not false to say that: Mr Nyoni was providing an unacceptable service to his customers, the community was dissatisfied with the level of services provided by Mr Nyoni, the Pharmacy was not always open during working hours, Mr Nyoni had not maintained the Pharmacy in a clean state and the Pharmacy lacked stock including prescription drugs. 24. During this period, both the DoH and PCWA carried out inspections of the Pharmacy but did not bring disciplinary proceedings against Mr Nyoni as a result. The DoH did, however, put in place a regime whereby: 24.1 Mr Nyoni was required to develop procedures for the recording of schedule 8 substance transactions at the Pharmacy; and 24.2 Mr Reid, a pharmacist from a nearby town, audited Mr Nyoni's compliance with procedures for handling Schedule 8 substances. 25. On 15 March 2010, the electricity supply to the Pharmacy was disconnected on account of the non-payment of accounts by Mr Nyoni. The DoH was notified of this disconnection by the Shire's Environmental Health Officer. 26. On about 14 October 2010, Synergy instructed a contractor in Kellerberrin, Kerry Varney, to disconnect the electricity supply to Mr Nyoni's residence on account of non-payment of accounts. On 14 October 2010, Mr Varney in turn orally instructed the Fifth Respondent ('Mr Mitchell'), a local electrician, to disconnect the electricity to what Mr Varney described as the 'Nyoni properties'. Mr Mitchell understood Mr Varney's instruction as requiring the disconnection of electricity supply to both Mr Nyoni's residence and the Pharmacy. Mr Nyoni had, in fact, paid the accounts for the Pharmacy and Synergy had not authorised disconnection of the electricity supply to it. 27. After receiving instructions from Mr Varney and before disconnecting the electricity supply to the Pharmacy, Mr Mitchell told Mr Friend that he intended to do so. Mr Friend sent an email to officers of the DoH and PCWA at 3:31pm on 14 October 2010 stating that he had been advised that electricity would be disconnected to the Pharmacy later that day. 28. It was found by the Trial Judge that Mr Friend's intention in sending the email was to persuade the DoH and PCWA to act against Mr Nyoni as a consequence of the disconnection of the electricity supply to the Pharmacy. 29. At approximately 3:32pm on 14 October 2010, Mr Mitchell disconnected the electricity supply to the Pharmacy. 30. Timothy Van Bronswijk of the PCWA replied to Mr Friend's email at 4:04pm on 14 October 2010 requesting that Mr Friend arrange for 'the electrician' to confirm on letterhead once he had carried out the disconnection of electricity to the Pharmacy. Mr Friend assisted Mr Mitchell to prepare a letter to Mr Van Bronswijk, confirming that electricity had been disconnected to the Pharmacy, which was signed by Mr Mitchell and sent to the DoH on 14 October 2010. 31. Between 5pm and 6pm on 14 October 2010, Mr Mitchell contacted Mr Varney to confirm the disconnection of the electricity supply to Mr Nyoni's residence and the Pharmacy and was advised of the mistake in his instructions. Mr Mitchell was instructed to and did reconnect the electricity supply to the Pharmacy at around 9:45am on 15 October 2010. 32. Sometime before 10:58am on 15 October 2010, Mr Friend became aware that the electricity supply to the Pharmacy had been reconnected. Mr Mitchell did not tell Mr Friend or anybody else at the Shire that the disconnection of the electricity supply to the Pharmacy had not been authorised by Synergy. There was no evidence led, or finding made, that Mr Friend was made aware of that fact from anyone else. 33. Mr Friend sent an email to PCWA at 10:58am on 15 October 2010 advising it that the electricity supply to the Pharmacy had been restored. It appears the DoH was also informed that power was reconnected at about 10am on 15 October 2010. 34. The registrar of PCWA wrote to Mr Nyoni on 15 October 2010 stating that the continuous supply of electricity to registered pharmaceutical premises was essential and that it was concerned that interruption of such supply may render the provision of safe and timely pharmacy services difficult. PCWA was statutorily dissolved at 5pm on that day. 35. The DoH wrote to Mr Nyoni on 19 October 2010 advising that further disconnections of electricity to the Pharmacy would give rise to consideration of whether Mr Nyoni's Pharmaceutical Chemist Licence should be suspended. 36. On 23 January 2013, Mr Nyoni was convicted in the Magistrates Court of Western Australia on six counts of contravening the Poisons Regulations. Mr Nyoni was, following appeal, fined $10,000 in respect of those convictions. 37. Mr Nyoni had his authority to store and supply schedule 8 substances revoked by the DoH in May 2013. 65 From these facts, the Shire submits, the following propositions arise for the purposes of assessing general damages: (1) The tort of misfeasance in public office was committed by the sending of the 14 October 2010 email; and Mr Friend was not involved with the disconnection of the electricity supply and there was no finding that any subsequent conduct by him was malicious for the purposes of the tort. (2) Mr Mitchell did not know that Synergy had not authorised the disconnection of the electricity supply to the pharmacy; and so, by extension, Mr Friend cannot have known that the disconnection was not authorised. (3) The continuous supply of electricity to the pharmacy is a matter of relevance to the safe provision of services by a pharmacist and therefore of interest to the Department and the Pharmaceutical Council. (4) While Mr Friend's actions were found to be malicious, that intention was "ancillary" to his concern for the provision of an essential service to the community of Kellerberrin. (5) The email was sent only to the Department and the Pharmaceutical Council and there is no evidence or finding that it or the information contained in it were circulated more broadly. (6) The Department and Pharmaceutical Council already had concerns regarding the adequacy of the services provided by Mr Nyoni via the pharmacy and they were significant enough for the Department to implement an audit regime. (7) Neither the Department nor Pharmaceutical Council took any action, consequent upon the email, against Mr Nyoni. 66 In this light, the Shire submits that: (1) As the email and its contents were not communicated beyond the Department and the Pharmaceutical Council, the scope of any damage to Mr Nyoni's reputation is limited to the effect it had on those organisations. (2) As the Pharmaceutical Council was statutorily disbanded the day after receiving the email, it is reasonable to infer that any impact upon Mr Nyoni's reputation with that organisation was negligible. (3) The only evidence of the Department's consideration of the email appears from the letter which it sent to Mr Nyoni on 19 October 2010. (4) So far as the Department's impression of Mr Nyoni is concerned, it: (a) already had sufficient concerns as to Mr Nyoni's operation of the pharmacy to undertake investigations and implement an audit programme; (b) was aware that the electricity supply to the pharmacy had been disconnected in March 2010 on account of non-payment of invoices; and (c) beyond sending the letter of 19 October 2010, took no action against Mr Nyoni with respect to the disconnection; and other concerns it had with his conduct were so significant that it commenced prosecution and revoked his licence to dispense Schedule 8 substances. (5) Thus it follows that a reasonable inference should be drawn that the email had a negligible effect on the Department's opinion of Mr Nyoni. 67 The Shire expressly concedes that Mr Nyoni may have felt aggrieved and distressed as a result of the correspondence from the Department and the Pharmaceutical Council, including the letter of 19 October 2010; however, in the context of the dissolution of the Pharmaceutical Council and the wider actions taken against Mr Nyoni by the Department, any such distress was likely relatively minor. 68 Thus the Shire, in its written submissions, initially submitted that any award of damages should be "nominal". However, in oral submissions the Shire clarified that submission. It explained that it was not submitting that nominal damages in the sum of $1 or $10 or $100 may be appropriate, but that damages in the order of those awarded in favour of Mr Nyoni against Mr Mitchell might be appropriate at least on a proportionate basis. 69 The Shire indeed, in its written submissions, refers to a survey of general damages awarded in defamation cases between 2007 and 2018. By reference to Gibson DCJ's "Defamation Case Law Analysis and Statistics" in Tobin TK and Sexton MG (eds), Australian Defamation Law and Practice (Butterworths, 1991) at [60,500]-[60,600], the Shire identifies 16 such cases which involve "direct communications" as opposed to widely broadcast publications and says the survey discloses that the range of damages awarded was between $5,000 and $85,000, with an average award of $30,000. 70 The Shire submits that the majority of those cases, however, involve imputations of "moral turpitude" and not merely carelessness (which, it submits, is the character of the conduct here). The Shire submits that the award of damages should be substantially less in this case and should also reflect the fact damages have already been awarded as against Mr Mitchell. 71 The Shire contends that these submissions should apply equally whether damages are framed as general or aggravated; but further submits that aggravated or exemplary damages are not appropriate in the circumstances of this case in any event. 72 Acknowledging the finding that Mr Friend's conduct was intended to cause the Department and the Pharmaceutical Council to take action, it submits that it needs to be borne in mind that: (1) The email was made to the Department and the Pharmaceutical Council in circumstances where there was a history of grievances being raised with both the Shire and those bodies regarding the adequacy of services provided by Mr Nyoni in Kellerberrin. (2) There was a history of the electricity supply to the pharmacy being disconnected for non-payment of invoices. (3) Mr Friend did not know that the disconnection to the pharmacy on 14 October 2010 was not authorised. 73 In those circumstances, the Shire submits, Mr Friend's conduct on behalf of the Shire was not of sufficient nature to justify a sanction beyond an award of general damages, and there is no need to make such an award to deter future conduct. 74 In the event that the Court considers aggravated or exemplary damages should be awarded, the Shire submits that any award of exemplary damages should be of nominal value only. 75 The Shire notes that recent awards of exemplary damages have ranged between $10,000 and $25,000, citing a number of cases, though in one case concerning police officers, an award of $50,000 has been made. 76 The written and oral submissions made on behalf of Mr Friend and the other respondents broadly support the submissions made on behalf of the Shire. 77 These respondents address in particular the question of aggravated damages and exemplary damages. They note that aggravated damages are compensatory in nature being awarded for the injury to a plaintiff's feelings caused by insult, humiliation and the like, citing Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47. The respondents note that the primary judge here found that it was evident from the letters written by the Department and the Pharmaceutical Council that Mr Nyoni suffered damage to his reputation because no one advised them that the disconnection was not attributable to the fault of Mr Nyoni. 78 They also note that the Full Court added that there is no reason the law should ignore the reality that a professional person must suffer some real, material harm when a public officer makes a complaint about the person to a regulator of his or her profession and that the making of such a complaint should be presumed (as it would in a case of defamation) to cause sufficient material or actual damage. 79 Nonetheless, these respondents submit there is still an onus on Mr Nyoni to produce evidence of damage to substantiate his claim and there is none before the Court that he suffered any material or actual damage as a result of Mr Friend's conduct. 80 They further submit that the assessment of damages for injury to reputation in a case like this must be based upon a qualitative judgment as to what Mr Nyoni's reputation was before the defamatory publication and the extent to which the publication has injured that reputation. And in this case, it cannot be said that he had a good reputation as of 14 October 2010, having regard to the findings of the primary judge that rejected each of the imputations that Mr Nyoni pleaded concerning the provision of unacceptable services to customers; community dissatisfaction with services he provided; the pharmacy having irregular hours of opening; the pharmacy being in a dirty state; the pharmacy lacking stock and lacking prescription drugs; and the community not receiving access to essential services because of him. 81 Additionally, these respondents submit that Mr Nyoni did not suffer any reputational damage, or only nominal damage from the 14 October 2010 email because the Pharmaceutical Council ceased to exist on 14 October 2010, and the Department took no relevant action against him and he was already well known by virtue of earlier complaints. 82 Finally, these respondents submit that if general damages and aggravated damages are awarded, they should be confined to the quantum awarded in respect of the conduct of Mr Mitchell, being a total of $12,000. 83 These respondents also reject any proposition that exemplary damages should be awarded submitting that Mr Friend's intention was not to harm Mr Nyoni but to cause proper disciplinary action to be taken against him in circumstances where continued complaints had been made against him to the Shire and other bodies relating to his practise as a pharmacist. 84 Further, that when Mr Friend wrote to the Department and the Pharmaceutical Council, he had no reason to believe that Mr Nyoni was not at fault for the disconnection to the pharmacy. And there was no evidence led or finding made that he was aware that the disconnection to the pharmacy had not been authorised by Synergy. 85 Thus, Mr Friend's conduct was not of sufficient nature to justify making an exemplary damages award against him. 86 Like the Shire, Mr Friend and these respondents refer to a number of authorities on the award of exemplary damages for the assistance of the Court.

What general damages are payable? 87 I note and accept the submission made on behalf of the respondents that the primary judge expressly found that there is no evidence of economic loss or other damage of a psychological or emotional kind, on the basis of the expert evidence led by Mr Nyoni at trial. 88 However, I also accept that, as the Shire submits, it is appropriate to assess general damages, in the first instance, "as if" the cause of action was actionable per se, consistent with the Full Court's finding that, as on an assessment of damages for defamation, damage to reputation could be presumed. 89 In that regard, I also accept the Shire's submissions that the decision in Carson provides an appropriate analogy for considering how damages in this case might be assessed, having regard to the questions of consolation for personal distress and hurt caused by Mr Friend's and the Shire's torts, reparation for harm done to the applicant's personal business reputation, and vindication of the applicant's reputation. 90 I also note and have regard to the academic writing and survey of relatively recent damages assessments provided by the respondents, accepting also the submission that each case turns on its own facts. 91 As I have explained above, there is no doubt that general damages in this case should be more than nominal, that is to say, more than a mere $1, $10 or $100 award acknowledging the wrong but not actually compensating for the reputational loss suffered. 92 The responses by both the Department and the Pharmaceutical Council following the notification of the disconnection of electricity to the pharmacy on 14 October 2010 were set out by the primary judge at [296] and [297] of the primary judgment. 93 On 15 October 2010, the registrar of the Pharmaceutical Council wrote to Mr Nyoni in the following terms: On 14 October 2010 the Council was advised by a licenced electrical contractor that at 3.32 pm on 14 October he disconnected the electricity supply to Kellerberrin pharmacy. Council was subsequently advised that the electricity supply to the pharmacy was reconnected at around 10.00 am this morning. This Council regards the continuous supply of electricity to registered pharmacy premises as essential to the provision of a professional pharmacy service. It is concerned that interruption of electricity supply to any pharmacy may render the provision of a safe and timely pharmacy service difficult. I suggest you take steps to ensure that this episode is not repeated in the future. 94 Then on 19 October 2010, Dr Robertson of the Department wrote in the following terms to Mr Nyoni: I am writing to you as the Licence Holder for Kellerberrin Pharmacy (Pharmaceutical Chemist Licence 1983, issued under the Poisons Act 1964). The Department has been advised that the electrical power to Kellerberrin Pharmacy was disconnected, at the request of Western Power, at 3.32 pm on 14 October 2010. I understand the power was reconnected at approximately 10 am on 15 October 2010. I am aware that the electrical power was similarly disconnected from Kellerberrin Pharmacy between 15 March 2010 and 17 March 2010. Obviously power outages do occur at times as a result of natural disasters. However, this does not appear to be the case in the instances described above. I am very concerned that continued disconnection of electrical power from Kellerberrin Pharmacy makes it very difficult for scheduled medicines to be stored at the correct temperature, especially over the summer months and particularly if the pharmacy stocks medicines which require refrigeration. Should you choose to operate the pharmacy while the power is off, the risk of non-compliance with the labelling and recording requirements for Schedule 4 and Schedule 8 medicines, as specified in the Poisons Regulations 1965, is also likely to be increased unless you have a back-up power supply for operation of your dispensing computer system. Section 24 of the Poisons Act 1964 requires the Chief Executive Officer (CEO) to be satisfied that the premises of the applicant is suitable for the purpose for which the application is made and is properly and hygienically equipped for that purpose, before the CEO issues a licence under the Act. Regular and prolonged disconnection of electrical power could be considered to render the premises unsuitable for use as a pharmacy. This letter is to advise you that, should another power disconnection occur under similar circumstances, consideration will be given to suspending your Pharmaceutical Chemist Licence for Kellerberrin Pharmacy. 95 It is clear that each of the Department and the Pharmaceutical Council took, to put it neutrally, a dim view of the disconnection. The last sentence of the Pharmaceutical Council's letter plainly implies that if there were a repetition of "this episode" then the Pharmaceutical Council (or presumably its successor) might take action on the basis that Mr Nyoni was not rendering the "provision of a safe and timely pharmacy service". 96 Similarly, the last sentence of the last paragraph of the Department's letter, is in far more direct, but similar, terms. In that case, should there be a repetition of the disconnection problem, then Mr Nyoni was given to understand that his licence for the Kellerberrin pharmacy might be suspended. 97 Given the nature of the running battle, generally speaking, between the Shire and Mr Nyoni, up to 19 October 2010, the notification by email of the disconnection problem (notwithstanding the fact, which I accept, that the evidence does not show that Mr Friend was aware that Synergy had not authorised the disconnection of the pharmacy) was significant. If the Department and the Pharmaceutical Council, by one means or another, could in regulatory terms close down Mr Nyoni's business, because he was not providing a safe and timely service, or a properly and hygienically equipped service, then he would stand to lose his immediate livelihood. The 14 October 2010 email was 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, and to take regulatory action against him. The fact that the email may have been but the latest step in a series of complaints about Mr Nyoni and the service he was providing in Kellerberrin, may be considered partly to the point but not to the whole point. It can be no excuse to send an email, characterised by the Full Court as "targeted malice", because of existing grievances. 98 I have no doubt that Mr Nyoni would have suffered a considerable degree of distress on receiving the correspondence from the Department and the Pharmaceutical Council just referred to. His evidence before the primary judge supports that inference. 99 I consider the fact that the Pharmaceutical Council was statutorily disbanded the day after the sending of the email to be of little relevance to the damages question. The fact of the matter was the Pharmaceutical Council was to be reorganised. It was not going to cease to exist. It would have a successor. It might reasonably be assumed that the information it held and the correspondence it had sent concerning Mr Nyoni, including the 15 October 2010 letter, would have a regulatory life beyond 15 October 2010. 100 The effect the letter had on further lowering Mr Nyoni's reputation with the Pharmaceutical Council is, to my mind, obvious. 101 Similarly, the standing of Mr Nyoni with the Department was affected. The terms of its response on 19 October 2010 constituted a very blunt warning to Mr Nyoni. The understanding of the Department plainly was that he was responsible for the disconnection, when in fact he was not. As explained earlier, no steps were taken to rectify the understanding of the Department or the Pharmaceutical Council when it was discovered that Synergy had not authorised the disconnection at the pharmacy. 102 I therefore do not accept the submission effectively made by all respondents that a reasonable inference ought to be drawn that the receipt of the email had a "negligible effect" on the Department's and the Pharmaceutical Council's opinion of Mr Nyoni. It was a further and significant factor in a case being assembled against him. 103 Similarly, I do not accept the submission that any distress that Mr Nyoni may have felt as a result of the correspondence was likely to have been relatively minor in the context of the almost immediate dissolution of the Pharmaceutical Council and "wider actions" taken against Mr Nyoni by the Department, subsequently. From Mr Nyoni's point of view, the correspondence, on top of other matters, no doubt both aggrieved and distressed him in ways that went well beyond being "relatively minor". The general tenor of his evidence and the maintenance of the proceedings by him against the Shire and others is, to my mind, some indication of the extent to which he felt and feels aggrieved. In the circumstances, his sense of grievance by reason of the Shire's sending of the 14 October 2010 email, cannot be discounted on the basis of having no proper foundation or on the basis of later events. 104 In these circumstances, I consider that damages, by the way of general damages in the first instance, must be more than nominal. 105 The conduct of Mr Friend as CEO and on behalf of the Shire, in my estimation, exceeds that of Mr Mitchell and the general damages payable should be assessed without regard to the damages awarded against Mr Mitchell. 106 The primary judge, at [337] of the primary judgment awarded general damages against Mr Mitchell to vindicate Mr Nyoni's right to exclusive use and possession of his pharmacy premises, as well as his reputational damage. The total was in the sum of $8,000. 107 The cause of action was in trespass against Mr Mitchell. The primary judge, at [335], confirmed his finding that Mr Mitchell advised the Shire in advance of the impending disconnection and cooperated with the Shire by signing the confirmation letter because he was willing to assist the Shire in reporting the disconnection to the regulatory authorities to show that, as he put it, Mr Nyoni did not run a "perfect pharmacy". Further, Mr Mitchell did not, after he found out that the disconnection of the electricity to the pharmacy had not been authorised by Synergy, advise the Shire to that effect. The judge thus found that the reputational damage suffered by Mr Nyoni was a natural and probable consequence of Mr Mitchell's conduct. 108 In my view, similar findings should be made against Mr Friend and the Shire, by reason of Mr Friend's conduct in sending the 14 October 2010 letter. It followed on from Mr Mitchell's conduct and involved Mr Friend dealing directly with Mr Mitchell and obtaining the confirmation letter, signed by Mr Mitchell. Similarly, the evidence plainly is that Mr Friend similarly shared the view that Mr Nyoni was not running a perfect pharmacy and should be closed down. 109 The conduct of Mr Friend, however, in my view, goes well beyond that of Mr Mitchell when its significance is weighed. Mr Mitchell understood that his confirmation letter was intended to have influence with the regulatory authorities. But it was up to Mr Friend to actually activate, so to speak, that confirmation letter by procuring its production and dispatch to the Pharmaceutical Council. Mr Friend, as CEO, on behalf of the Shire, was using the Shire's good offices to add real weight to the communications with the authorities. 110 Similarly, it may be said that the reputational damage suffered by Mr Nyoni was a natural and proper consequence of Mr Friend's conduct as CEO and on behalf of the Shire. In my view, however, as I have indicated, the Shire's conduct, through Mr Friend, was of a higher significance than that of Mr Mitchell, being the direct action that caused the reputational damage suffered by Mr Nyoni at the hands of the Department and the Pharmaceutical Council. 111 I would assess general damages to be awarded in respect of Mr Nyoni's reputational damage in the sum of $15,000 to be paid by Mr Friend and the Shire on a joint and several basis.

Should aggravated damages be awarded? 112 As the primary judge noted, at [340] of the primary judgment, aggravated damages are compensatory in nature, whereas exemplary damages - considered further below - are penal in nature. As observed in New South Wales v Ibbett (2006) 229 CLR 638 at [31]; [2006] HCA 57 (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ), aggravated damages are a form of general damages, given by way of compensation for injury to an applicant, which may be intangible, resulting from the circumstances and manner of the wrongdoing. 113 The idea is that a particular "affront" to an applicant's rights may "aggravate" the infringement of the right and so justify the claim, and the award, of additional damages for the aggravation. 114 On this basis, the primary judge awarded aggravated damages against Mr Mitchell. 115 At [338] of the primary judgment, his Honour considered that Mr Mitchell committed the trespass while acting in a "highhanded and disrespectful manner": he entered the pharmacy without having any written evidence from Synergy that he was authorised to disconnect the electricity and, notwithstanding that Mrs Nyoni disputed his right to disconnect the electricity, and asked him for written evidence that Synergy had authorised the disconnection, he declined to contact Synergy or to take any other steps to obtain such evidence. Rather, he insisted on disconnecting the electricity without first satisfying himself and Mrs Nyoni that he was authorised to do so. He knew that his actions were causing her distress. 116 His Honour emphasised, at [339], that it was incumbent upon Mr Mitchell, as the person asserting the lawful authority to intrude on another person's property, to satisfy himself that he was authorised to do so. 117 The primary judge, as noted earlier, and as summarised by the Full Court, found that on 14 October 2010 Mr Friend wrote and sent the email advising of the impending disconnection of electricity to the pharmacy. As the primary judge said, at [357], Mr Friend procured the production and dispatch of the letter signed by Mr Mitchell later on 14 October 2010. At [358], he found that Mr Friend's intention in communicating with the authorities was to harm Mr Nyoni by causing the authorities to take action against him as a consequence of the disconnection of the electricity. 118 In my view, that conduct, specifically designed to cause reputational harm to Mr Nyoni should be visited with an award of aggravated damages by reason of the affront it constitutes to Mr Nyoni's right not to be so harmed. 119 Again, in my view, the fact that there may have been other grounds for the Shire to be concerned about and indeed seriously dissatisfied with the pharmaceutical services being provided by Mr Nyoni to the community of Kellerberrin, did not justify the intentional conduct, constituting the tort of misfeasance in public office, that Mr Friend engaged in as CEO and on behalf of the Shire. The law generally, and tort law in particular, does not operate on the basis that "the end justifies the means" and I certainly do not consider it should operate on that basis in this case. 120 In my view, the additional sum of $5,000 should also be awarded against Mr Friend and the Shire by way of aggravated damages for the sending of the 14 October 2010 email and the procuring of the production and dispatch of the letter on the same day which sum should be paid on a joint and several basis.

Should exemplary damages also be awarded? 121 It is well understood that exemplary damages, having a penal purpose, may be awarded for a tort such as misfeasance in public office where the commission of the wrong complained of has been "high-handed, insolent, vindictive or malicious or had in some way exhibited a contumelious disregard of the plaintiff's rights". See Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118 at 129; [1966] HCA 40; XL Petroleum (NSW) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited (1985) 155 CLR 448 at 471; [1985] HCA 12. 122 The respondents submit that Mr Friend's intention was not to harm Mr Nyoni but to cause proper disciplinary action to be taken against him in circumstances where continued complaints had been made to the Shire and other bodies about his practise as a pharmacist. 123 It is further submitted that when Mr Friend wrote to the Department and the Pharmaceutical Council he had no reason to believe that Mr Nyoni was not at fault for the disconnection. Further, it is submitted that Mr Mitchell did not tell Mr Friend or anyone else at the Shire that the disconnection of the electricity supply had not been authorised by Synergy and there was no evidence led or finding made that Mr Friend was aware of that fact from anywhere else. 124 I consider the submissions in this last paragraph to be correct. The primary judge, at [335], expressly found that Mr Mitchell did not, after he found that the disconnection of the electricity had not been authorised by Synergy, advise the Shire (by Mr Friend or otherwise) to that effect. 125 It cannot be said, therefore, in my view, that the undoubted primary intention of Mr Friend to encourage the regulatory authorities to consider taking action, in effect, to bring Mr Nyoni's ability to operate his pharmacy to an end, was compounded by failing to disclose this factor to the authorities. The evidence does not disclose that, having been apprised of the Synergy authorisation issue by Mr Mitchell (or anyone else), Mr Friend deliberately held back from letting those authorities know of the true state of affairs. 126 However, the fact remains that the Shire, by Mr Friend, had the intention in communicating with the authorities, to harm Mr Nyoni by causing the authorities to take action against him as a consequence of the disconnection of the electricity (as the primary judge found at [358]). 127 In these circumstances, as the Full Court said, in the joint judgment, the communication construed "targeted malice". For this, exemplary, penal, damages must be awarded over and above the aggravated damages I have awarded against both Mr Friend, as CEO, and the Shire. The Shire, by its CEO or otherwise, should never allow itself to conduct its local government responsibilities in a malicious manner. 128 The CEO and the Shire should always strive to be exemplary government officials and entities. Here, they failed that test of public probity. 129 On account of these findings, I would award exemplary damages in the sum of $10,000 against both Mr Friend and the Shire on a joint and several basis.

Conclusion and orders 130 For these reasons, I order that: (1) The first and second respondents pay the applicant damages in the total sum of $30,000, comprising $15,000 general damages, $5,000 aggravated damages and $10,000 exemplary damages, to be paid by them on a joint and several basis. 131 I will hear from the parties as to what other orders should now be made in order to deal with the outstanding question of costs in the proceeding following the Full Court orders. I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

SCHEDULE OF PARTIES WAD 316 of 2010 Respondents Fourth Respondent: FRANK PECZKA Fifth Respondent: PETER MITCHELL

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