Procedure - Pleading - Application to strike out statement of claim - Plaintiff claims misfeasance in public office, collateral abuse of process, malicious prosecution, assault, battery, false imprisonment, deceit and injurious falsehood - Whether pleading discloses a reasonable cause of action - Turns on own facts

Torts - Misfeasance in public office - Whether defendant arguably a public officer - Criteria for determining whether public officer

Aboriginal Councils & Associations Act 1976 (Cth)

Corporations (Aboriginal & Torres Strait Islander) Act 2006 (Cth) s 469­5, s 469­10

Statement of claim struck out with leave to replead

A v New South Wales [2007] HCA 10; (2007) 230 CLR 500

ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti [2008] VSCA 274

Ballina Shire Council v Ringland (1994) 33 NSWLR 680

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82

Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317

Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269

Dickenson v Waters Ltd (1931) 31 SR (NSW) 593

Dunlop v Woollahra Municipal Council [1982] AC 158

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Farrington v Thomson [1959] VicRp 49; [1959] VR 286

Gould v Vaggelas [1985] HCA 85; (1984) 157 CLR 215

Gumbangerrii Aboriginal Corporation v Nambucca Council (1996) 131 FLR 115

Henderson v McCafferty [2000] QSC 410; [2002] 1 Qd R 170

Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Lib No 6414, 25 August 1986)

MacMahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149

Murcia Holdings Pty Ltd v City of Nedlands [1999] WASC 241; (1999) 22 WAR

Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597

New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511

Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307

Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388

Porter v OAMPS Ltd [2005] FCA 232; (2005) 215 ALR 327

Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16

Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515

Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612

Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329

Tampion v Anderson [1973] VicRp 70; [1973] VR 715

Trevorrow v The State of South Australia (No 5) [2007] SASC 285; (2007) 98 SASR 136

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

1 The defendant applies to strike out the plaintiff's amended statement of claim dated 28 April 2009. In my opinion, for the reasons that follow, the statement of claim does not disclose any reasonable cause of action and should be struck out.

2 The plaintiff represents herself in her action against her former employer.

3 The defendant was incorporated under Part IV of the Aboriginal Councils & Associations Act 1976 (Cth) (the 1976 Act). That Act was repealed with effect from 1 July 2007. Since 1 July 2007 the defendant has continued as a corporation under the Corporations (Aboriginal & Torres Strait Islander) Act 2006 (Cth) (the 2006 Act).

4 On 23 January 2009 the plaintiff commenced this action by filing a writ with a statement of claim dated 23 January 2009 annexed.

5 On 18 February 2009 the defendant applied to the case management registrar for orders that the statement of claim be struck out.

6 On 23 March 2009 the defendant's application came before the registrar. The registrar ordered that the defendant file submissions by 30 March 2009 and the plaintiff file responsive submissions by 6 April 2009.

8 At the directions hearing on 7 April 2009, the plaintiff indicated that she intended to amend her statement of claim to identify which parts of the statement of claim were said to constitute each of the various causes of action referred to in that pleading. I ordered that the plaintiff file and serve any amended statement of claim and any further submissions by 28 April 2009. I also made orders for the filing and serving of further submissions by the defendant and submissions in reply by the plaintiff. The plaintiff filed an amended statement of claim on 29 April 2009. References in these reasons to the statement of claim are to the amended statement of claim.

9 The defendant filed and served its outline of submissions on 11 May 2009. The plaintiff filed submissions in reply on about 2 June 2009 (the early June submissions). The defendant sought and was granted leave to file submissions in response to certain portions of the plaintiff's submissions. The defendant filed and served these submissions on 22 June 2009. The plaintiff filed and served her response to those submissions on or about 29 June 2009 (the late June submissions).

10 At the directions hearing on 7 April 2009 I ordered that the defendant's application be determined on the papers.

11 The defendant relies on O 20 r 19(1)(a) and O 20 r 19(1)(c) of the Rules of the Supreme Court 1971 (WA). Under O 20 r 19(1)(a), the court may strike out a pleading if it discloses no reasonable cause of action. Under O 20 r 19(1)(c) the court may strike out a pleading if the pleading may prejudice, embarrass or delay the fair trial of the action.

12 The principles to be applied in considering an application under O 20 r 19(1)(a) were summarised by Master Staples in Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Lib No 6414, 25 August 1986) 6 - 7, as follows:

(1) The rule is intended to apply only to cases which are really not arguable and not to cases where under the previous practice demurrer would have been the proper course: Packard v Transport Trading and Agency Co Ltd (1912) 14 WALR 191 per Burside J at 195.

(2) On the application, not only must all the facts alleged in the statement of claim be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable: Niven v Grant (1903) 29 VLR 102 per Holroyd J at 106;

(3) Great care must be exercised to ensure that the plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal: General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125 at 130.

(4) The rule should not be reserved for those cases where argument is unnecessary to show the futility of the plaintiff's claim. Argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot succeed: General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125 at 130.

(5) As a general rule, a plaintiff is 'entitled... as of right to have his case heard, to have the facts found and then to argue the question of law as it arises before the trial judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out: Dalgety Australia Ltd v Rubin (Unreported, WASC Full Court, Lib No 5485, 24 August 1984, per Burt CJ).

(6) A court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie: Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 per Master Allen.

More recently, Templeman J summarised the principles relevant to a strike out application in MacMahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271 [11] - [26]. His Honour referred to and applied the following statements of Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82:

It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.

In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. In this Court, those pre-trial directions will almost invariably include; firstly, a direction for the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial; secondly, the exchange well prior to trial of non-expert witness statements so that non-expert witnesses will customarily give their evidence-in-chief only by the adoption of that written statement; thirdly, the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial; fourthly, the exchange of chronologies; and fifthly the exchange of written submissions.

Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met.

In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment [4] - [7].

13 It is to be noticed that it remains an essential requirement for a pleading to fulfil its basic functions of identifying the issues, disclosing an arguable cause of action and apprising the parties of the case that has to be met.

14 I have taken into account that the plaintiff is a litigant in person. See, in this regard, Kendall & Curthoys, Civil Procedure Western Australia [20.19.1A]

15 The statement of claim is lengthy. A copy of it is annexure 1 to these reasons.

16 Paragraphs 2 and 3 of the amended statement of claim refer to various sections of different pieces of legislation. Although it is not clear, it may be that those paragraphs are intended to be the basis of claims for breach of statutory duties by the defendant.

17 Paragraph 4 of the statement of claim identifies the causes of action in tort which the plaintiff relies upon, namely:

18 In pars 5 - 127, the statement of claim pleads a series of events relating to the plaintiff's employment with the defendant. At various paragraphs, one or more of the torts referred to in par 4 is listed. I take this to be an identification by the plaintiff of the facts which are said to constitute or give rise to the corresponding tort listed in par 4.

19 Paragraph 129 of the statement of claim contains a number of elements. Among them are statements in par I to VIII, which appear to be introductory in character. There are then listed the damages claimed by the plaintiff. These are amounts claimed for medical costs ($2,000), loss of earning capacity ($180,362), and future economic loss ($613,230). There are then what are described as 'capital nominal damages and capital contemptuous damages' for each of the causes of action in par 4. A number of matters are listed under the subheading 'Exemplary (Punitive) Damages'.

20 I observe at the outset that the rolled-up character of the plea of loss and damage in par 129 is unacceptable. The plaintiff evidently relies on at least eight different causes of action. Damage is an essential element of many of them. In any event, different acts are apparently relied upon to constitute the various causes of action. The pleading must isolate what is said to have been caused by the conduct constituting each tort, and then identify what loss or damage that conduct caused the plaintiff to suffer. It is, in my opinion, impermissible to plead that at various points in time various conduct constituted various torts and then to claim, without more, that the plaintiff has (in effect) suffered damage in the form of loss of earning capacity from November 2006 for the rest of her working life.

21 I turn to consider each of the causes of action alleged in the statement of claim.

22 Although it is not clear, it may be that, by pars 2 and 3 of the statement of claim, the plaintiff intends to identify alleged causes of action based on breaches of statutory duty by the defendant. If so, in my opinion those paragraphs, read with the remainder of the statement of claim, do not disclose any reasonable cause of action.

23 Paragraphs 2 and 3 refer to s 5V(2) and s 5Y(1) of the Civil Liability Act 2002 (WA). Those sections are in the following terms:

5V Application of Part

(1) Subject to sections 3A and 4A, this Part applies to any claim for damages for harm caused by the fault of a person unless this section states otherwise.

(2) This Part extends to a claim for harm caused by the fault of a person even if the damages are sought to be recovered in an action for breach of contract or any other action.

...

5Y Proceedings against public body or officer based on breach of a statutory duty

(1) This section applies to proceedings to which this Part applies that are based on an alleged breach of a statutory duty by a public body or officer in connection with the exercise of or a failure to exercise a public function of the body or officer.

(2) For the purpose of proceedings to which this section applies, the public body or officer cannot be liable for damages for harm caused by fault in the exercise of, or a failure to exercise, the statutory duty unless the provisions and policy of the enactment in which the duty is created are compatible with the existence of that liability.

24 The term 'public body or officer' in s 5Y is defined in s 5U in the following terms:

public body or officer means -

(a) the Crown (within the meaning of the Crown Suits Act 1947);

(b) a department of the Public Service established under the Public Sector Management Act 1994 section 35;

(c) an entity specified in column 2 of Schedule 1 to the Public Sector Management Act 1994;

(d) an organisation specified in column 2 of Schedule 2 to the Public Sector Management Act 1994;

(e) a non-SES organisation within the meaning of that term in the Public Sector Management Act 1994 section 3(1);

(f) a local government or a regional local government;

(g) a body that is established or continued for a public purpose under a written law;

(h) a body or officer prescribed (or of a class prescribed) by the regulations as a public body or officer to which this Part applies (in respect of all or specified functions); or

(i) any person or body in respect of the exercise of public or other functions of a class prescribed by the regulations for the purposes of this Part.

25 Section 5V(2) does not of itself create any liability. Rather, the section identifies the scope of operation of Part 1C. Thus any liability is to be found, if at all, not in s 5V itself but in some other provision in Part 1C.

26 The only provision of Part 1C to which the plaintiff refers is s 5Y. That section does not create any liability. Rather, it creates an essential pre-condition to any liability for breach of statutory duty.

27 In short, nothing in s 5V(2) or s 5Y(1) is capable of creating any cause of action to support the plaintiff's claim.

28 Paragraphs 2 and 3 of the statement of claim also refer to s 469 -5 and s 469 -10 of the 2006 Act.

Actually causing detriment to another person

(1) A person (the first person ) contravenes this subsection if:

(a) the first person engages in conduct; and

(b) the first person's conduct causes any detriment to another person (the second person ); and

(c) the first person intends that his or her conduct cause detriment to the second person; and

(d) the first person engages in his or her conduct because the second person or a third person made a disclosure that qualifies for protection under this Part.

Penalty: 25 penalty units or imprisonment for 6 months, or both.

Threatening to cause detriment to another person

(2) A person (the first person ) contravenes this subsection if:

(a) the first person makes to another person (the second person) a threat to cause any detriment to the second person or to a third person; and

(b) the first person:

(i) intends the second person to fear that the threat will be carried out; or

(ii) is reckless as to causing the second person to fear that the threat will be carried out; and

(c) the first person makes the threat because a person:

(i) makes a disclosure that qualifies for protection under this Part; or

(ii) may make a disclosure that would qualify for protection under this Part.

Penalty: 25 penalty units or imprisonment for 6 months, or both.

Officers and employees involved in contravention

(3) If an Aboriginal and Torres Strait Island corporation contravenes subsection (1) or (2), any officer or employee of the corporation who is involved in that contravention contravenes this subsection.

Penalty: 25 penalty units or imprisonment for 6 months, or both.

Threats

(4) For the purposes of subsection (2), a threat may be:

(a) express or implied; or

(b) conditional or unconditional.

(5) In a prosecution for an offence against subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

469-10 Right to compensation

If:

(a) a person (the person in contravention ) contravenes subsection 469-5(1), (2) or (3); and

(b) a person (the victim) suffers damage because of the contravention;

the person in contravention is liable to compensate the victim for the damage.

30 The 2006 Act came into operation on 1 July 2007. All of the pleaded conduct of which the plaintiff complains in the statement of claim occurred before that date.

31 In my opinion, it is plain beyond argument that these sections do not apply to conduct occurring before 1 July 2007. The Corporations (Aboriginal & Torres Strait Islander) Consequential, Transitional & Other Measures Act 2006 (Cth) contains intricate provisions about transitional and consequential matters relating to the 2006 Act_._ Those provisions specify that certain sections of the 2006 Act apply in respect of specified past circumstances, and provide for the transitional operation of the 2006 Act replacing the 1976 Act. Nothing is specifically said about the operation of s 469-5 and s 469-10.

32 There is a well-established presumption against construing statutes as retrospectively altering substantive rights and obligations: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267; Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 518; Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [145]. In my opinion, there is nothing in the 2006 Act which arguably displaces that presumption. Consequently, there is no room for any claim by the plaintiff based on the 2006 Act.

33 The plaintiff submitted (in the early June submissions par 23 and the late June submissions par 49) that the 2006 Act applied because the effect of the violence restraining orders was to prohibit the plaintiff from certain conduct until 1 March 2008. In my opinion, that effect of the violence restraining orders does not render the 2006 Act applicable to conduct on the part of the defendant occurring prior to 1 July 2007.

34 Paragraph 3 of the statement of claim also refers to s 49C of the 1976 Act. That section provides that a member of the governing committee of an incorporated Aboriginal association must act honestly and diligently in exercising powers and performing functions and duties under the 1976 Act, and under the regulations and the rules made under that Act.

35 It can be seen that that section creates a statutory duty on the part of a member of the governing committee of an incorporated Aboriginal association. It does not create any duty on the part of an incorporated Aboriginal association. Consequently, the repeated references in the statement of claim to a breach by the defendant of s 49C reveal a fundamental misconception. The duty created by s 49C is incapable of being breached by an incorporated Aboriginal association.

37 The plaintiff invokes the tort of misfeasance in a public office in numerous paragraphs of the statement of claim (see pars 22, 24, 30, 35, 36, 39, 41, 43, 47, 48, 51, 55, 62, 67, 68, 73 and 104).

38 In some respects, the boundaries of the tort of misfeasance in a public office remain unclear: Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307, 345; Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329, 346. However, some things are clear. The essential elements of the tort of misfeasance in a public office include (but are not necessarily limited to) the following:

(a) the person (usually the defendant) who does the act (or omission) must be a public officer;

(b) the act is done in the purported discharge of the public duties of the public officer;

(d) the act is done maliciously, in the sense that it is done with the intention of causing harm or with the knowledge of lack of power or authority to do the act; and

39 Northern Territory v Mengel (345 - 348, 356 - 357, 370); Sanders v Snell (344 - 347); Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269 [209] - [216].

40 Later in these reasons I will identify an additional element.

41 In my opinion, none of the elements I have set out adequately appear from the statement of claim.

42 The first essential element is that the person who does the acts complained of must be, and act in the capacity of, a public officer. It is not clear from the statement of claim whether the plaintiff alleges that the defendant corporation is itself a public officer, or whether she alleges that one or more officers of the defendant were public officers for whose acts the defendant is vicariously liable. That ambiguity is reinforced by the early June submissions; see, for example, par 15.2. The statement of claim should make this clear.

43 Whether the plaintiff alleges that the defendant corporation is a public officer, or whether she alleges that employees of the defendant were public officers, in my opinion, for the reasons that follow, the statement of claim does not disclose a reasonable cause of action for misfeasance in a public office.

44 It appears from the early June submissions that the plaintiff contends that:

(a) a 'public authority' may be a proper defendant to an action for misfeasance in a public office; and

45 I do not accept the first of those propositions. In my opinion, it is clear from the cases that the person who does the act said to constitute the tort of misfeasance in a public office must hold a public office. Being a 'public authority' is a different matter; it does not suffice for the purposes of the tort.

46 In my opinion, it is not arguable that the defendant is a public officer.

47 The concept of the holder of a 'public office' for the purpose of the tort is a broad one: Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317. Most commonly it has been applied to persons who exercise executive administrative powers, including a sheriff and police officers: Farrington v Thomson [1959] VicRp 49; [1959] VR 286; stock inspectors: Northern Territory v Mengel; and a Minister: Sanders v Snell. It may also include those who exercise a judicial function: Cannon v Tahche [41] - [47].

48 I accept that a corporation may be a public officer for the purposes of this tort. For example, a municipality or local government is a public officer for the purposes of the tort: Murcia Holdings Pty Ltd v City of Nedlands [1999] WASC 241; (1999) 22 WAR [139]; Dunlop v Woollahra Municipal Council [1982] AC 158, 172.

49 The criteria for determining whether a person holds a public office were discussed in some detail by the Victorian Court of Appeal in Cannon v Tahche [49] - [76] (Winneke P, Charles and Chernov JJA). It was held that neither the prosecutor nor the instructing solicitor for the prosecution were holders of a public office for the purposes of the tort.

50 In many cases, it has been said that a public office 'must be one the holder of which owes duties to members of the public as to how the office shall be exercised': Tampion v Anderson [1973] VicRp 70; [1973] VR 715, 720; Henderson v McCafferty [2000] QSC 410; [2002] 1 Qd R 170. In Cannon v Tahche the Victorian Court of Appeal suggested that that criterion may be over-inclusive. In other words, their Honours doubted the sufficiency of satisfaction of that criteria. They concluded that it was essential that the office have, as an incident of it, a power in the discharge of which the public has an interest.

51 The cases emphasise that 'public officer' may bear different meanings in different contexts. See, for example, Henderson v McCafferty [32] - [33].

52 The plaintiff relies upon the decision of Stein J in the Land & Environment Court of New South Wales in Gumbangerrii Aboriginal Corporation v Nambucca Council (1996) 131 FLR 115 in support of her contention that the defendant is a public officer. In my opinion, that case dealt with an entirely different question for a different purpose and is of no assistance to the present matter. The question in that case concerned whether land owned by the applicant Aboriginal corporation was rateable by the respondent local authority. The relevant statute provided an exemption in respect of land that belonged to a public benevolent institution that was being used for certain purposes. The court decided that the applicant Aboriginal corporation was a public benevolent institution within the meaning of that legislation.

53 In Henderson v McCafferty summary judgment was granted in favour of the defendant to a claim for misfeasance in a public office. The defendant was the president of the Law Society, an organisation incorporated by statute. Williams J held that while the president of the society may be a public officer for certain purposes, he was not the holder of a public office for the tort of misfeasance in a public office [33] - [34].

54 In considering the question of whether an incorporated Aboriginal association is a public officer I have had regard to the provisions of Part IV of the 1976 Act.

55 Part IV of the 1976 Act creates a regime that is not dissimilar to statutory regimes for incorporated associations generally, for example, the Associations Incorporation Act 1987 (WA). The critical distinguishing feature is that only an Aboriginal person, or the spouse of an Aboriginal person, was entitled to be a member of an incorporated Aboriginal association under the 1976 Act: s 49. To my mind, that distinguishing feature does not transform the character of the association into a public office. It is an association of individual members which, by force of the 1976 Act, is a corporation and thus a separate legal entity.

56 In my opinion, a corporation under the 1976 Act does not arguably owe any duties to the public as to how it performs any particular act. Nor does that corporation have, as an incident of being such a corporation, a power in the discharge of which the public has an interest.

57 Whether the public duties criteria in Tampion v Anderson are applied, or the public power criterion in Cannon v Tahche is applied, in my opinion, it is not arguable that the defendant corporation is a public officer for the purposes of the tort of misfeasance in a public office.

58 It appears from the early June submissions that the plaintiff also contends that the members, staff, committee members, directors and officers of the defendant are public officers. If that is part of the case the plaintiff seeks to make, it has not been adequately pleaded. First, the pleading does not make this clear. Secondly, any claim based on vicarious liability would need to include facts to support a conclusion that the defendant was liable for the acts of any particular individual alleged to have committed the tort.

59 The tort of misfeasance in public office is the tort of the public officer who is liable personally. Unless the tortfeasor has de facto authority from an employer or principal, there will generally only be personal liability: Northern Territory v Mengel (347); Cannon v Tahche [33]. The facts and circumstances said to give rise to a de facto authority would need to be pleaded. As to vicarious liability for intentional torts generally, see New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511. In this regard, it is not sufficient to assert (as in par 15.3 of the early June submissions) that the defendant is 'vicariously liable for any employee acting wrongful or improper on behalf of the defendant in their role as a public officer without authorisation by the Management Committee.'

60 Further, I do not consider that a member, committee member, employee, director or officer of the defendant is, arguably, a public officer for the purposes of the tort of misfeasance in a public office. In this regard, I apply the public duties and public powers criteria I have already mentioned.

61 I note the defendant's submission that, under the 1976 Act, all Aboriginal corporations were required by s 56 to have a 'public officer'. The public officer was required to keep records of the association members under s 58 of the 1976 Act. Notwithstanding the coincidence in nomenclature, I do not consider that the 'public officer' under s 56 is a public officer for the purposes of the tort.

62 For these reasons, in my opinion, the statement of claim does not disclose any reasonable cause of action for the tort of misfeasance in a public office.

63 There seems to me to be an additional difficulty for that claim by the plaintiff. In Cannon v Tahche the Victorian Court of Appeal held that it was an essential element of the tort of misfeasance in a public office that the holder of the public office owe a duty to the plaintiff with respect to the exercise of its powers: [28], [38], [40], [77] - [79]. That was the approach adopted by Anderson J in Murcia Holdings Pty Ltd v City of Nedlands [142]. Anderson J considered that the requirement that there be a duty to the plaintiff had been accepted by the majority of the High Court in Northern Territory v Mengel. In any event, I should not depart from the decision of the Victorian Court of Appeal on a question of common law unless I were convinced that the decision was plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135]. I am not so convinced and, consequently, I propose to follow the approach in Cannon v Tahche. When that approach is applied it creates another obstacle for the claim by the plaintiff. The plaintiff was an employee of the defendant, but the defendant did not owe any relevant public duty to the plaintiff.

64 The tort of collateral abuse of process is concerned with the use of legal processes for an improper purpose. The tort is committed when a person commences or continues a legal process for the predominant purpose of achieving an ulterior and improper object outside the ambit of the legal claim, thereby causing damage to the plaintiff: Williams v Spautz [1992] HCA 34; [1992] HCA 34; (1992) 174 CLR 509, 522 - 526. Unlike the tort of malicious prosecution, it is not necessary that the legal proceedings were terminated in favour of the plaintiff.

65 Any plea of a claim of collateral abuse of process must plead the following matters:

(a) the act or acts said to constitute the tort, involving commencing or continuing a legal process;

(c) the intention with which, or purpose for which, those persons did those acts;

(d) the facts which support a conclusion that the acts, intentions and purposes of those persons were arguably, in law, the acts, intentions and purposes of the defendant; and

(e) the loss caused to the plaintiff by the act or acts.

66 The specific references to the tort of collateral abuse of process are found in pars 109, 110, 116 and 117 of the statement of claim.

67 The statement of claim pleads that four employees of the defendant applied for violence restraining orders against the plaintiff. Paragraphs 41 and 68 plead that this occurred under instructions from the chairperson and the secretary of the defendant.

68 The defendant submits, and I accept, that the plaintiff has failed to plead facts which arguably support a conclusion that the defendant is legally responsible for what the chairperson and the secretary are alleged to have done.

69 I note that the plaintiff submits, in par 38.4 of the early June submissions, that the chairperson and the secretary were not authorised by the management committee to give instructions to the staff members to obtain the violence restraining orders. That does not assist the plaintiff. To the contrary, that contention would tend against any conclusion of vicarious liability of the defendant for the conduct of the chairperson and the secretary.

70 Further, the third and fifth elements I have set out are not pleaded in the statement of claim. Consequently, I find that the statement of claim does not disclose any reasonable cause of action for the tort of collateral abuse of process.

71 The plaintiff invokes the tort of malicious prosecution in pars 78 and 109 of the statement of claim. Paragraph 78 pleads that the plaintiff was charged by police with the offence of breaching a violence restraining order. Paragraph 109 pleads that the plaintiff was found not guilty in relation to that charge and that no witnesses were called in support of the prosecution case.

72 For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

(1) that proceedings of the kind to which the tort applies (generally criminal proceedings) were initiated against the plaintiff by the defendant;

(2) that the proceedings were terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining the proceedings, acted maliciously; and

(4) that the defendant acted without reasonable and probable cause: A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 [1]. (emphasis added)

73 The plaintiff submits, in the early June submissions par 40, that the police charged her 'based on a complaint received from... the acting co-ordinator for the defendant'. For the reasons that follow, if that allegation were pleaded it would not give rise to any arguable claim for the tort of malicious prosecution.

74 In order to satisfy the first element of the tort, the defendant must play an active role in the conduct of the proceedings, by instigating or setting them in motion: A v New South Wales [34]. What must have been instigated or set in motion is the prosecution, not any preceding investigation: see Balkin, RP and Davis, JLR Law of Torts (3rd ed, 2004) [25.3]; Fleming, JG, Law of Torts (9th ed, 1998) 676. Thus it is not enough, in order to incur liability for the tort of malicious prosecution, that an individual person initiated the complaint to the police and was a witness in the prosecution; see Porter v OAMPS Ltd [2005] FCA 232; (2005) 215 ALR 327 [41] - [42].

75 Malice involves acting for purposes other than a proper purpose in instituting criminal proceedings. That other, improper, purpose must be the sole or dominant purpose actuating the prosecutor: A v New South Wales [55], [91]. Thus the element of malice requires the identification of a purpose other than the proper invocation of the criminal law.

76 The elements of malice and absence of reasonable probable cause are separate and distinct requirements of the tort of malicious prosecution: A v New South Wales [51] - [59].

77 In my opinion the statement of claim falls well short of pleading an arguable claim of malicious prosecution against the individual staff members, in that facts which at least arguably establish the first and third elements of a claim against the individual staff members have not been pleaded.

78 Further, the statement of claim does not plead any facts which would arguably make the defendant liable for any malicious prosecution on the part of any individual officer or employee of the defendant.

79 The plaintiff refers to the tort of assault in pars 67, 76 and 91 of the statement of claim. Paragraphs 67 and 76 rely on a threat by police that the defendant would be charged. Paragraph 91 relies on a threat by police that the plaintiff would be arrested. In each case, the paragraph pleads conduct on the part of the police, not conduct on the part of any officer or employee of the defendant.

80 Where no physical contact is alleged to have occurred, a plaintiff seeking to establish a cause of action for the tort of assault must show the following:

(1) A threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff forthwith. It is enough if the threat is to make contact to the body of the plaintiff without the plaintiff's consent or without any legal justification.

(2) A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary to prove that the defendant in fact intends to carry out the threat.

(3) The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary for the plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent.

(4) The apprehension in the mind of the plaintiff must be objectively reasonable.

(5) The plaintiff's reasonable apprehension caused injury, loss or damage to the plaintiff: ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti [2008] VSCA 274 [16]. (footnotes omitted)

81 None of these elements is arguably established by what is pleaded in the statement of claim.

82 Both threats of being charged in pars 67 and 76 are said to have been made by the police, not by the defendant. There are no facts pleaded as to why the threat can be said to have been made by or on behalf of the defendant. In that regard, it is not enough to assert (the early June submissions par 44) that police were acting on 'instructions' from an officer of the defendant or in response to a complaint made by an officer of the defendant.

83 Further, there is nothing pleaded to support a conclusion that the threat caused injury, loss or damage to the plaintiff.

84 Similar problems arise in relation to par 91. Further, there is nothing in the pleading which alleges a threat of arrest.

85 The plaintiff refers to the tort of battery at pars 76 and 77 of the statement of claim. These paragraphs concern conduct on the part of the police, not the defendant. It is pleaded in those paragraphs that the plaintiff was ordered into a police van, placed in a cell, and then questioned, searched, photographed and fingerprinted.

86 Battery is a form of trespass in which an act of a defendant directly and either intentionally or negligently causes physical contact with the plaintiff's person without consent of the plaintiff: Balkin & Davis, [3.1]; Trindade F, Cane P and Lunney M, The Law of Torts in Australia (4th ed, 2007) [2.2.1].

87 There is nothing pleaded in the statement of claim which would arguably make the acts of the police referred to in pars 76 and 77 the acts of the defendant.

88 Further, in par 50 of the early June submissions, the plaintiff asserts that the police were acting on behalf of the defendant when she was arrested by police without a warrant. That generalised assertion is a bare conclusion without any supporting facts. It would not, if pleaded, be sufficient to found a claim for battery against the defendant for the conduct of the police pleaded in pars 76 and 77 of the statement of claim.

89 Paragraphs 75 - 86 of the statement of claim allege the tort of false imprisonment against the defendant. The foundation of the plaintiff's claim is the allegation in par 75 that on 21 August 2006 five police officers arrested the plaintiff for breaching a violence restraining order. The subsequent paragraphs then set out what is said to have occurred. The plaintiff was ordered into a police van, taken to the Kalgoorlie police station, placed in a cell and then questioned, searched, photographed and fingerprinted. The plaintiff remained in the cell until the next day, when the matter was brought before the court. After argument, the plaintiff was granted bail.

90 The tort of false imprisonment protects the liberty of the individual. It provides a remedy when a person is unlawfully confined: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 [137]; Trevorrow v The State of South Australia (No 5) [2007] SASC 285; (2007) 98 SASR 136 [982].

91 Paragraphs 75 - 86 of the statement of claim are concerned with the conduct of police officers, not the defendant (or even its officers or employees). That invites attention to the question of the circumstances in which a person is liable for an imprisonment or other total restraint on a plaintiff's liberty brought about by acts of police officers.

92 It is not enough merely to give information to a police officer which leads the police to arrest a person. If it is not an act of the defendant that actually imprisons the plaintiff, then the defendant must be active in promoting and causing the imprisonment in order for the defendant to be liable: Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597, 629 - 630. The same idea was expressed by Gray J in Trevorrow [982], describing the requirement that one person 'directly' subjects another to total deprivation of freedom of movement. See also Ruddock v Taylor [141].

93 In some factual circumstances, it will be difficult to determine whether a person who complains to a police officer and then urges the police officer to arrest the plaintiff will be responsible for the detention arising from a subsequent arrest by the police officer; see, for example, Balkin & Davis [3.34]; Fleming, 37. If the police officer is exercising an independent discretion, the complainant will not be liable. If, on the other hand, the complainant directs the police officer to arrest, the complainant will be liable: Dickenson v Waters Ltd (1931) 31 SR (NSW) 593; Ruddock v Taylor [114] - [115] (McHugh J in dissent, Kirby J agreeing [143]. The majority took a different view on whether the detention was unlawful, and expressed no view on this point).

94 Paragraph 75 of the statement of claim states, in very general terms, that:

... [T]he Defendant had wrongfully and without reasonable grounds sought to have the police execute the [violence restraining orders] by arresting the Plaintiff.

95 What is pleaded in this paragraph does not disclose a reasonable cause of action and is unacceptably general. In order to found this cause of action, the plaintiff would need to plead material facts that identify:

(a) a direction or instruction by an officer or employee of the defendant ordering the police to arrest the plaintiff; and

(b) facts and circumstances supporting the conclusion that the defendant is vicariously liable for that conduct on the part of the officer or employee concerned.

96 In the early June submissions par 52, the plaintiff asserts that the police 'were acting on behalf of the defendant'. That generalised assertion is inadequate to found any cause of action for false imprisonment. Further, the early June submissions state that the material facts held on the police file prompted the police officers to arrest the plaintiff (par 53). That fact, if accepted, would not give rise to a liability on the part of the defendant for false imprisonment. To the contrary, that would lead to the conclusion that the police officers exercised their own discretion, based on the information available to them, as to whether to arrest the plaintiff. As I have said, merely giving information to the police (even if it is false) does not give rise to a liability for false imprisonment arising from arrest and detention by a police officer.

97 The elements of the tort of deceit include the following:

(c) intended by the defendant to be acted upon by the plaintiff;

(d) in fact acted upon by the plaintiff to his or her detriment; and

(e) thereby causing loss or damage to the plaintiff.

98 See Trindade, Cane & Lunney [6.3]; Gould v Vaggelas [1985] HCA 85; (1984) 157 CLR 215.

99 The plaintiff refers to the tort of deceit in pars 29, 40, 51, 57, 67, 68, 73, 78, 104 and 113 of the statement of claim. In my opinion those paragraphs, read with the statement of claim as a whole, do not disclose any reasonable cause of action for the tort of deceit.

100 The majority of the paragraphs referred to do not plead any statement made to the plaintiff. Rather, they plead statements made to third parties.

101 Paragraph 51 pleads a statement made to the plaintiff. However, there is no plea of reliance by the plaintiff on that statement. Further, many other elements of the tort of deceit that I have identified are also absent from the plaintiff's statement of claim.

102 For these reasons, the statement of claim does not disclose any reasonable cause of action for the tort of deceit.

103 It has been said in general terms that the elements of an action for injurious falsehood are:

(1) a false statement of or concerning the plaintiff's goods or business;

(2) publication of that statement by the defendant to a third person;

(4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement: Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 [52]; Balkin & Davis [23.3]; Trindade, Cane & Lunney [6.4.1].

104 In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 [11], French CJ, Gummow, Heydon, Kiefel and Bell JJ described the tort of injurious falsehood as being concerned with compensating damage caused to the plaintiff's goods or business.

105 However, what is set out above should not be taken as a comprehensive statement of the scope of the tort of injurious falsehood. It is sufficient if the statement concerns the conduct of the business or profession of the plaintiff: Palmer Bruyn [60]. Moreover, Fleming argues that the tort is broad enough to include any damaging falsehood which interferes with a prospective advantage, even of a non-commercial nature: Fleming, 778. In Palmer Bruyn, the High Court said that it was unnecessary in that case to deal with the question of the scope of the tort: [1], [60].

106 In Ballina Shire Council v Ringland (1994) 33 NSWLR 680, 693 Gleeson CJ discussed the 'interesting question' as to how far the action for injurious falsehood extends beyond concepts of business or property.

107 The subject matter of some of the statements relied upon in the statement of claim concern the plaintiff's performance at work. I would not be prepared to strike out the statement of claim on the basis that the subject matter of these statements is outside the scope of the tort of injurious falsehood. That would be a matter for argument and resolution at a trial.

108 However, the statement of claim does not plead the other elements of the tort. In particular, the statement of claim does not plead:

(1) malice on the part of the maker of the statement;

(2) facts supporting the conclusion that the statements and malice of the individual concerned are the statements and malice of the defendant for the purposes of this tort; and

(3) actual damage suffered by the plaintiff as a result of any relevant statement.

109 For these reasons, the statement of claim does not disclose a reasonable cause of action for the tort of injurious falsehood.

110 For the reasons I have given, the statement of claim does not disclose any reasonable cause of action in respect of the various causes of action identified in the pleadings.

111 For these reasons, I would strike out the statement of claim, with leave granted to the plaintiff to replead. I will hear from the parties as to the precise form of orders and as to costs.