THE AUSTRALASIAN JOURNAL OF PHARMACY 
341 
THE QUEEN Y. THE PHARMACY BOARD OF VICTORIA; EX PASTE 
dimock. 
( Specially reported for The Australasian Journal of Pharmacy j 
This was an appeal by the Pharmacy Board to the Full Court from an order made by 
Chief Justice Stawell that a writ of mandamus should issue directed to the Board, com- 
manding them to grant a certificate to George Augustus Dimock, qualifying him for 
registration as a pharmaceutical chemist, and also ordering that the costs of the application 
for the mandamus be paid by the Board to Dimock. 
Mr. Hodges and Mr. Isaacs on behalf of the Board: This appeal arises out of an 
application made by Dimock to the Board, requiring the Board to grant him a certificate 
under the Act. The Board refused the application, and an application was made to the 
court for a mandamus directing the Board to issue the certificate. The mandamus was 
granted, with costs, against the Board, and it is against that decision that this appeal 
is brought. The applicant applied for his certificate under Section 18, sub-section 2, as 
having been employed as a dispensing assistant in an open shop for the compounding 
and dispensing of the prescriptions of legally qualified medical practitioners, for not less 
than three months before the commencement of the Act. There is nothing in the Act 
to show what a “dispensing assistant” is, but he must be a person who can make up 
prescriptions as distinguished from a boy in the shop. A mere statement by the appli- 
cant that he has been an assistant for three months does not necessitate the Board’s 
granting a certificate. Assuming that the Board find that the applicant had been an 
assistant for the requisite time, the question arises as to whether the Board has a 
discretion in the matter. 
Judge Higinbotham : The question is whether the Board have power to inquire as 
to the applicant’s qualification. 
Mr. Hodges: The language of Section 18 is negative. The Board cannot grant a 
certificate, unless an affidavit is made that the applicant had been a dispensing assistant 
for the specified time; hut there are no affirmative words imposing the duty on the 
Board of granting the certificate if this fact is proved. When the Legislature has 
intended to impose a duty on the Board it has done so in express terms, for by Section 
11 the Board is compelled to register all persons to whom they have given the certifi- 
cate of qualification. The Board have heard and determined the matter, and say they 
cannot give the certificate, as they cannot conscientiously say that the applicant is duly 
qualified for registration. The Board say, “ You were so young that we do not think 
you could have been what you say.” The Board would have been quite satisfied with 
the evidence if they thought the applicant had been old enough. It seems an extreme 
course to say that on an affidavit being filed the Board is bound to issue a certificate. 
Judge Higinbotham : If the Board said in distinct terms that they had refused the 
application because they did not think that the applicant had been employed as dis- 
pensing assistant in an open shop for three months, I think it would be very difficult 
to touch their decision. 
Mr. Hodges : The Board are not prepared to deny that the applicant was in the 
shop, and may have assisted his father in the makmg-up of prescriptions ; but that 
does not make him a dispensing assistant. The facts to be ascertained are, what he did, 
and if that makes him a dispensing assistant. 
Judge Higinbotham: Does not the evidence of the applicant’s father and others go 
to show that he acted as dispensing chemist? 
Mr. Hodges: It may go to show it, but it does not prove it. The Board and not 
the Court are the persons to decide as to whether the applicant has complied with Section 
18, sub-section 2. If the Court can say that the Board must grant a certificate in this 
case, the Court will have to say that on the affidavit of an applicant and of his employer 
the Board would have to grant a certificate in every case. 
Judge Higinbotham : If the Board were satisfied that a person had been three months 
as an assistant, would you say that they had a discretion? 
Mr. Hodges: Yes ; I think so. A mandamus is only sent to justices where they have 
not heard and determined. It is never sent where they have heard and determined, 
however erroneously. . ... 
Judge Webb : Is there any evidence that the Board have heard and determined this 
matter ? 
Judge Higinbotham: The word “conscientiously” raises a doubt. The affidavit of 
Mr. Blackett would seem to show that they considered it lay on them to consider the 
applicant’s fitness for the position, and that they have not considered the matter apart 
from that. 
Mr. Hodges : Where an application has been refused there must have been a deter- 
mination. This mandamus directs the Board to issue a certificate, it therefore assumes 
that the matter has been determined. Where there is a discretion, it is unheard of to 
say that the discretion shall be exercised in a particular way. Ordering costs of the 
mandamus against the Board was not justified. The Board occupies a public trust, and 
unless there is mala fules costs should not be awarded against them (ftx parte Pickup , 
