THE AUSTRALASIAN JOURNAL OF PHARMACY. 
342 
6, A. LT. *29). The Board in granting or witholding a certificate, exercise judicial 
functions, and if they have made a mistake at all, the mistake is one of law, and not of 
fact. 
Mr. Box and Mr. Smith, on behalf of the applicant : The rule was argued upon the 
ground that although the applicant had been three months a dispensing assistant he 
could not be qualified. The question that the Board did not believe the employment 
has never been raised before. Before the Pharmacy Act was passed any person 
could act as a chemist. This Act established the Board to protect the public. 
Judge Webb : The Board seems to me to say to the applicant — “ We do not believe 
that you were 'an assistant, because you were so young that you could not have 
been.” 
Mr. Box : The Board says — “We quite admit you were employed, but we think it 
impossible that you should have acquired sufficient knowledge.” 
After a discussion on the question of costs, Mr. Justice Higinbotham delivered the 
judgment of the Court as follows : — 
There appears to be no doubt that the Pharmacy Board have laboured under a 
mistake as to their duties in determining on Mr. Bimock’s application. The Act was 
passed to impose a restriction upon the preparation and sale of drugs. Before the 
Act came into operation a great variety of persons were engaged in different places 
and under varying circumstances, in earning their livelihood by the compounding and 
dispensing of drugs; and it was the intention of the Legislature to recognise the 
fact that persons who might be unqualified under the provisions of the new legislation, 
but had been engaged in the actual work of compounding and dispensing drugs, should 
not be deprived of their means of livelihood by the passing of the Act, but that 
although they were unqualified, they should be registered under the Act, as they had 
been allowed to work for some time compounding and dispensing drugs. There are 
several classes of persons who are to be regarded as having acquired certain rights 
by actual practice of this business before the Act came into operation, viz. : — (1) 
those who had actually carried on the business of chemist and druggist ; (2) those 
persons who had “ at any time before the commencement of the Act been for not less 
than three months employed as a dispensing assistant in an open shop for the com- 
pounding and dispensing of the prescriptions of legally-qualified medical practitioners and 
(3) apprentices to a chemist, Ac. The present applicant claims Jthat he is entitled to a 
certificate that he is duly qualified for registration as a chemist, on the ground that he 
comes within the second of these classes, as defined by Section IS, sub-section 2, 
namely : — that before the commencement of the Act he had been for three months 
employed as a dispensing chemist in an open shop, dispensing the prescriptions of 
legally-qualified medical practitioners. The Court is not at all prepared to assent to 
the vieAv put forward on behalf of the Board, that the Board in interpreting the 
section had an arbitrary and altogether unregulated authority to refuse a 
certificate to an applicant. These provisions were intended to define the 
rights of applicants, and as soon as a person brings himself within the 
statutory terms of the sub-sections it cannot be successfully contended that he has not 
the legal right to receive the certificate merely on the ground that the language of the 
Act is negative, and not positive. The distinction drawn by the Legislature between 
some of the classes to which I have already referred is sufficient to show that persons 
who had served an apprenticeship for a certain time were to be required to pass a 
modified examination in subjects prescribed by the Board before they obtained a certificate. 
No such condition is made in the sub-section as regards dispensing assistants ; therefore, 
any person who succeeds in bringing himself within the terms of the sub-section, and 
who establishes the fact that he has been engaged for not less than three months as a 
dispensing assistant in an open shop, would be entitled, on that proof being established, 
to receive a certificate. Then comes the question, who are the judges of the fact? The 
Court are of opinion that the Pharmacy Board is to ascertain and determine that fact, 
and that no other body but the Board can determine it. In this case the Board has 
made a mistake in supposing that, in addition to determining the fact, it has also the 
power and the duty to inquire into tire qualification of the applicant as regards his 
fitness. The Board has no such power. All it has to decide is the question of fact 
whether the applicant has been for three months employed as a dispensing assistant 
under Section 18, sub-section 2. The Board has nothing to do with the question 
whether he is fit to carry on the business. The Legislature has otherwise provided, and 
where the Legislature has made certain provisions, it is not for the Board to raise 
further conditions outside the Act, and not conferred by the express language of the 
Act. In this case the Board appears not to have rightly conceived its duty under the 
sub-section. Speaking for myself, I should be inclined to infer that the Board has 
been led into the mistake partly by the conduct of the applicant. He made an 
application in 1879 for a certificate, when he had not complied with the provisions of 
the Act ; he was not of the proper age, and could not have been granted the 
certificate. He concealed from the Board the fact that he was not then of age, and, 
when he was afterwards confronted with the fact, the Board then canvassed the 
question whether he was qualified to carry on the business. They did so when they 
