Cannon & Rochford v Tahche & Ors [2002] VSCA 84

Ms. K. Robertson, Solicitor for Public Prosecutions

2. Angela Cannon and Mark Rochford (whom we will call "the first applicant" and "the second applicant" respectively, or collectively, "the applicants") are the fifth and sixth defendants in the principal proceeding. They seek leave to appeal against certain interlocutory decisions of a judge of the Supreme Court made on 8 March 2002 to which reference will be made later, and if leave is granted, they propose to prosecute their appeal. The application is supported by the Director of Public Prosecutions ("the Director") who, on 24 August 2001, was granted leave to intervene in the principal proceeding and who also applies to this Court for leave. The respondents to the applications are Robert Tahche, the plaintiff in the principal proceeding, who is the first respondent (and to whom we will continue to refer as "the plaintiff"), and a number of the applicants' co-defendants in the action. At the hearing before us, the only respondent who appeared was the plaintiff who was represented by Mr. Hore-Lacy and Mr. J. Gorton.

5. As will be explained more fully later, the plaintiff has brought the proceeding against the applicants and a number of others, most of whom are police officers, claiming damages in respect of loss alleged to flow from his conviction on 30 March 1992 for the alleged indecent assault and rape with aggravating circumstances of Sammia Abboud, who is a cousin of the plaintiff and the first defendant in the principal proceeding. We will refer to her as "the first defendant". The second applicant is a barrister who appeared as prosecutor at the plaintiff's trial and the first applicant, a solicitor, was his instructor. The plaintiff claims that the applicants are liable to him for misfeasance in a public office ("the tort") in respect of their conduct as prosecutors at his trial (and that the first applicant is additionally liable for such misfeasance arising out of certain conduct by her after the trial). The applicants sought to have the plaintiff's claim against them struck out, principally on the basis that the plaintiff does not have a good cause of action against them for misfeasance in a public office because, inter alia, they were not, at the relevant time, holders of a public office. On 8 March 2002, his Honour held against the applicants and made certain orders in the plaintiff's favour to which reference will be made later. It is against those decisions that the applicants seek leave to appeal.

9. Before dealing with their application, it is necessary to describe the circumstances which led to his Honour making the impugned orders. The relevant events commenced on 23 October 1990, when the plaintiff was sentenced to a term of imprisonment of three and a half years in respect of counts of rape and indecent assault against the first defendant to which he had pleaded guilty. The sentencing judge fixed a non-parole period of 15 months. On 30 August 1991, being not long after he was released from gaol, and while on parole, the plaintiff was arrested and charged with the offences in respect of which he was convicted on 30 March 1992 as we have already described. It was alleged that the plaintiff had again raped the first defendant in order to punish her for complaining to the police about his earlier offending. Hence, the alleged second rape became known as "the revenge rape". The plaintiff's trial for the revenge rape commenced on 23 March 1992 and, as we have said, he was convicted on 30 March 1992. On 13 April 1992 the plaintiff was sentenced to a term of imprisonment of 14 years with a non-parole period of 11 years in respect of those convictions. The Director appealed against the sentence and, on 11 August 1992, this Court increased it to 16 years' imprisonment with a minimum term of 13 years.

12. During the course of the plaintiff's trial for the revenge rape, the applicants learned that the first defendant had claimed that she had also been raped by her other cousin, Charlie Tahche, with, inter alia, an instrument and in a manner similar to the way in which she said the plaintiff had assaulted her We will refer to this material as "the information". There is a conflict between the plaintiff and the applicants as to whether they disclosed the information to his counsel. For the present purposes, however, it is sufficient to note that the claim by the first defendant that she had also been raped by Charlie Tahche was not disclosed to the court. In April 1994, some two years after the plaintiff's conviction for the revenge rape, the first defendant admitted, in an interview with the police, that she had fabricated the complaint against Charlie Tahche and had also wilfully inflicted the damage to her own genitalia by means of an instrument. This admission followed examinations of the first defendant by a number of forensic medical practitioners, at least some of whom cast doubt on the first defendant's claim that she had been raped by Charlie Tahche with an instrument. They considered her injury to be consistent with a self-inflicted injury. It should be noted, however, that at no stage did the first defendant recant her complaints against the plaintiff or the evidence that she gave at his trial. In January 1995 she claimed that what she had told the police in respect of her fabrications against Charlie Tahche was untrue. It is apparent, nevertheless, that both her complaint against him, which had many similarities to her complaint against the plaintiff, and her later recantation of it, were relevant to the question whether the plaintiff's conviction was unsafe and unsatisfactory.

15. In due course, the information concerning the first defendant's allegations against Charlie Tahche and her subsequent recantation of them and the results of the medical examinations of the first defendant to which reference has been made, were made available to the plaintiff's lawyers. Not surprisingly the plaintiff applied on 2 June 1995 to this Court, on the basis of that material, for leave to appeal out of time against his conviction for the revenge rape. On 27 July 1995 the plaintiff sought bail pending the hearing and determination of his application for leave to appeal. The Director did not oppose that application and in the result, the plaintiff was released on bail on 27 July 1995.

18. At the hearing of the application for leave to appeal, the Director conceded that the new evidence relied upon by the applicant fulfilled the essential characteristics of "new evidence" and that it was of such nature as would warrant the Court granting the plaintiff's application. More particularly, the Director conceded that the new material was capable of being accepted as credible. This Court examined the matter for itself, although paying due regard to the attitude of the Director to the application, and concluded that the fresh evidence was of such a character and quality that if it had been available to the jury at the trial there was a significant possibility that the jury would have reached a different verdict.[1] Consequently, the Court ordered a new trial and said that it was a question for the Director to decide whether the new trial would proceed. On 13 October 1995, the Director entered a nolle prosequi in relation to the alleged revenge rape.

21. When the principal proceeding was first filed by the plaintiff in 1997, the first four defendants were the only persons sued. The plaintiff alleged that the first defendant had made a false and malicious report of the alleged revenge rape to the police and had given false evidence against him at the committal and trial. The second and third defendants were investigating police officers who, the plaintiff alleged, committed a number of wrongful acts against him in the course of their investigation of the complaints of the first defendant. The fourth defendant, the State of Victoria, was sued as being vicariously liable for, inter alia, the alleged wrongs committed against the plaintiff by the second and third defendants.

24. It was not until April 2001, some four years after the plaintiff instituted the action, that the plaintiff joined the applicants as fifth and sixth defendants to the proceeding.[2] In his amended statement of claim the plaintiff alleges that, at all relevant times, the applicants were "public officers" and that, during the course of the trial, they received the information[3] but wrongfully failed to disclose it to him and dissuaded the first defendant from disclosing it to him and from formally reporting her allegations against Charlie Tahche to the police. It is further alleged that the failure by the applicants to disclose the information to the plaintiff was a deliberate act on their part and was done knowingly in breach of their duties (to which reference is made below), or alternatively, in reckless disregard of them. It is further said that this wrongful act was done for an ulterior purpose and with malice, in that it was calculated to cause harm to the plaintiff, or was done with reckless indifference as to whether it would or would be likely to cause him harm. Such wrongful conduct by the applicants, it is pleaded by the plaintiff, was a cause of his being convicted for the revenge rape and of his remaining in prison until July 1995, or alternatively, such wrongful conduct denied him the chance of being acquitted or otherwise getting out of prison before that date. As a result, it is claimed, the plaintiff suffered loss and damage.

27. More particularly, it is pleaded in paragraph 30A of the further amended statement of claim that the applicants, "as prosecutors":

(a) were under a continuing duty to disclose to him or to his legal representatives information of which they were aware that was relevant to his defence or that was required to be so disclosed in order for the plaintiff to have a fair trial;

(b) were under a duty to conduct all aspects of the prosecution of the plaintiff in a fair and impartial manner.

It is then claimed (in paragraph 30D) that the above alleged wrongful conduct amounted to:

(a) a breach of the said duties;

(b) invalid acts or omissions by them in the performance of their "functions and powers" as prosecutors.

Furthermore, it is said (in paragraph 30E) that, at the time of the said breaches, the applicants were aware of, or were recklessly indifferent to:

(i) the existence of the said duties;

(ii) the fact that their above breaches amounted to invalid acts and/or omissions in the performance of their "function and powers" as prosecutors;

(iii) the fact that their breaches would or would be likely to cause harm to the plaintiff.

33. In their defence the applicants deny that they failed to disclose the information to the plaintiff or to his legal advisers as is alleged by the plaintiff (in paragraph 30C). Although they admit that they had received the information during the trial, they claim that it had been passed on by the second applicant, in the presence of the first applicant, to counsel for the plaintiff and that they thereby disclosed the information to him. They also claim that the plaintiff's counsel had made an informed and deliberate decision not to raise or rely on the information or otherwise investigate it in conducting the defence of the plaintiff for the alleged rape. Furthermore, the applicants admit in their Defence:

(a) their roles in the plaintiff's trial, namely, that they were instructor and prosecutor respectively;

(b) that they were under a "duty to disclose to the plaintiff or to his legal representative information of which they were aware that was relevant to the defence of the alleged rape" or which was "required to be disclosed to the plaintiff to have a fair trial";

(c) that they were under a duty whilst instructing and prosecuting at the trial "to conduct the prosecution in a fair and impartial manner".

In their pleadings, they describe the above duties as "personal" duties and say that they were owed "to the Court" and not "to the plaintiff" and that, in any event, they carried out and fulfilled such duties. Each respectively denies that, at the relevant time, he or she was "a Public Officer for the purpose of the tort of misfeasance in a public office".

39. We mention for completeness that, pursuant to leave granted to him, the plaintiff also joined as defendants a number of other senior police officers. It is not necessary, however, to make any further reference to those defendants.

42. On 17 August 2001, the applicants filed a summons by which they sought summary judgment pursuant to R.23.01 of the Rules of the Supreme Court on the grounds that the plaintiff's pleading against them did not disclose a cause of action and that the plaintiff's claim was statute-barred because the proceeding against them was brought more than six years after the cause of action accrued. It was said that the cause of action accrued between 23 and 30 March 1992. Alternatively, they sought an order that the statement of claim against them be struck out pursuant to R.23.02. In the further alternative, an order was sought that certain questions be tried pursuant to R.47.04 with the view to establishing that the plaintiff's allegations in the statement of claim against them did not disclose a cause of action. On 31 October 2001 his Honour ordered that the questions be tried separately under R.47.04 on the relevant facts alleged in the further amended statement of claim and the agreed facts which were annexed as a schedule to his Honour's order. So far as is relevant, the agreed facts, additional to those pleaded and summarised above, were:

(a) At all material times the first applicant was:

(a) employed as a solicitor under section 8 of the Director of Public Prosecutions Act 1982 as it was in force prior to 1 July 1994 and thereafter under Part 7 of the Public Prosecutions Act 1994;

(b) the solicitor instructing at the prosecution of the plaintiff for the alleged revenge rape referred to in the pleadings;

(c) acting within the scope of her employment.

(b) At all material times the second applicant was:

(a) a member of the Victorian Bar;

(b) counsel prosecuting the plaintiff at his trial for the alleged revenge rape.

(c) The respective salary and the brief fee of the applicants were paid from public funds.

48. Between 24 and 31 October 2001, his Honour conducted the trial of the questions and also heard the plaintiff's application for leave to file a second further amended statement of claim by which it was sought, inter alia, to make further allegations against the fifth defendant. On 8 March 2002, his Honour determined upon the trial of the separate questions:

(a) that the applicants were the holders of a public office and were public officers for the purposes of the tort;

(b) that as a matter of law and on the facts alleged in the further amended statement of claim and the agreed facts they could be held liable to the plaintiff for damages in respect of the tort and were not immune from such liability to the plaintiff;

(c) that as a matter of law and on the basis of the above facts the applicants owed to the plaintiff the duties alleged in paragraph 30A of the further amended statement of claim to which reference has been made earlier.

His Honour also rejected the applicants' claim that the proceeding against them was statute-barred. He did so on the basis that the duty to disclose was a continuing one and that, therefore, the cause of action did not accrue until 27 July 1995.[4] The learned judge dismissed the applicants' summons and made a costs order against them in respect of the trial of the separate issues and on the application for summary judgment.[5]

New allegations against the first applicant

54. Further, by a separate order made on that day, his Honour gave the plaintiff leave to file a second further amended statement of claim and thereby add further causes of action against the first applicant. The learned judge rejected the argument for the applicants that the new claim against the first applicant was statute barred. His Honour decided that it was arguable, as the plaintiff had contended, that the alleged duties were continuing duties and, therefore, the last date for accrual of the cause of action was 27 July 1995, the date when the plaintiff was released from gaol. His Honour did not, however, accept all of the plaintiff's arguments in support of this claim and on appeal, the plaintiff seeks to challenge that aspect of his Honour's decision by way of his Notice of Contention. But for reasons that will become apparent later, it is not necessary to deal with this part of the plaintiff's case.

57. In the new claim against the first applicant, the plaintiff alleges that, in November 1993, (being some 18 months after the trial), she became aware that a police doctor, Dr. Jappie, had examined the first defendant on or about 8 November 1993 and that, from the examination, Dr. Jappie had formed the view that the injuries which the first defendant had claimed were inflicted on her by Charlie Tahche were injuries that indicated a self-inflicted mode of causation. It is said that the first applicant did not inform the plaintiff of this information, but instead arranged for the first defendant to be examined again by another police doctor, Dr. Wells who informed the first applicant, in substance, that he could neither rule in nor rule out self-infliction. It is claimed by the plaintiff that the above information (to which we will refer as "the post trial information") indicated that his conviction was or might have been unsafe or that a miscarriage of justice had occurred or that otherwise the conviction was liable to be set aside on his application. It is further alleged that it was reasonably foreseeable that such failure to disclose would or might cause the plaintiff harm and that the failure was a cause of the plaintiff remaining in prison until July 1995.

60. In the new pleading, the plaintiff claims that the first applicant was under a continuing duty to disclose all relevant information to the plaintiff and thus, was under an obligation to tell him of the post-trial information which had come to her attention. Her failure to make such a disclosure, it is said, amounted to a breach of that duty. It is further alleged in the new pleading that the failure to disclose the later material to the plaintiff was deliberate and was done for an ulterior purpose and with malice, in that it was calculated to cause harm to the plaintiff. Alternatively, it is said, it was done in the knowledge that it would or would be likely to cause him harm or there was a reckless indifference by the first applicant as to whether the failure would or would be likely to cause the plaintiff harm.

64. The parties before us accepted that his Honour's orders of 8 March 2002 were interlocutory and that, therefore, the applicants would require leave if they were to pursue their appeal. Given that his Honour's orders did not finally dispose of the rights of the parties, namely, those of the plaintiff and the applicants, the orders were properly regarded by them as being interlocutory notwithstanding that they were made on the determination of questions that were ordered to be tried separately pursuant to R.47.04 (Dunstan v. Simmie & Co.[6]). The general rule is that, in order to secure leave to appeal against an interlocutory decision, the applicant must establish that the decision is attended with sufficient doubt and that substantial injustice will result unless it is set aside[7]. The Court's discretion whether to grant leave, however, is not fettered by this general rule. It is open for it, in determining whether to grant leave, to take into account the fact that the legal issue raised by the proposed appeal is one of general public importance - Commissioner for Corporate Affairs v. X and Y[8]. See also X v. Director of Public Prosecutions[9].

67. After hearing the parties on the issue, we gave leave to the applicants to appeal against his Honour's orders and said that we would state our reasons later, should that prove to be necessary. It is convenient that we do so now, bearing in mind that it is the practice in Victoria that applications for leave to appeal are disposed of without giving detailed reasons - X v. Director of Public Prosecutions[10]. First, we considered that the principal legal issue raised by the proposed appeal is clearly one of general public importance. No case has been cited to us, and we have not been able to find one, where counsel who has been briefed to prosecute for the Crown has been successfully sued by the accused for damages for misfeasance in a public office. The same can be said in relation to a solicitor who instructs such a prosecutor. The circumstances in which the second applicant conducted the prosecution of the plaintiff and the circumstances in which the first applicant instructed him, occur almost daily in our courts. Consequently, a determination as to whether the plaintiff can claim damages from the two applicants for misfeasance in a public office would have considerable ramification for the potential liability of counsel who are briefed to prosecute in criminal trials and for their instructing solicitors. This, in turn, would have a significant bearing on the preparedness of members of the independent Bar to accept unconditionally briefs to prosecute for the Crown and on their ability to obtain appropriate professional indemnity insurance. There would be flow-on implications for the cost of such insurance as well. Next, after consideration, we found that his Honour's decision that the applicants were holders of a public office for the purpose of the tort in question and that they could be held liable to the plaintiff for that tort, was attended with sufficient doubt. We were also of the view that, in the circumstances, substantial injustice would arise if, in the event of error, his Honour's decision was not set aside.

70. Therefore, it was clear enough that it was appropriate to grant the applicants leave to appeal against his Honour's orders. For like reasons, leave was given to the Director to appeal against the decision. Consequent upon leave being given, the applicants and the Director filed their respective notices of appeal which corresponded with the proposed notices of appeal which had been filed earlier. The Court then proceeded to hear the parties' respective arguments on the appeal.

74. The applicants' principal attack on his Honour's decision was based on contentions that can be conveniently divided into the following groups.

(a) They were not public officers for the purposes of the tort, and even if they were, they owed no relevant duty to the plaintiff. Thus, it was said, the plaintiff did not have a good cause of action against them in the tort.

(b) In any event, they were immune from liability to the plaintiff -

(i) in accordance with principles stated in Giannarelli v. Wraith[11] and related authorities;

(ii) because they enjoyed a general prosecutor's immunity from suit.

(c) The learned judge made a number of other errors in exercising his discretion to give the plaintiff leave to further amend his statement of claim as against the first applicant and in his characterisation of the plaintiff's cause of action against the applicants for the purpose of, inter alia, the operation of the Limitation of Actions Act 1958.

It is appropriate to consider first whether the plaintiff has a good cause of action against the applicants in misfeasance in a public office. In that context, it will be necessary to consider whether -

(a) the applicants were public officers for relevant purposes;

(b) they owed any relevant duty to the plaintiff which was arguably breached by them.

Relevant aspects of his Honour's decision

80. We turn to consider first whether his Honour erred in deciding that, at the relevant times, the applicants were holders of a public office for the purposes of the tort. The plaintiff's case below was that the applicants were public officers during the period of his trial and that the first applicant continued to have that status after the trial, including the period during which she received the post-trial information. The applicants[12], however, argued that an essential indicium of a public office was the attachment to it of statutory or common law powers which are to be exercised by its holder for the public benefit. They claimed that they did not hold or exercise any such powers and, therefore, they were not holders of a public office. The learned judge rejected this argument. His Honour considered that the question whether an office is a public office is to be determined not by an analysis of what powers, if any, are attached to the office, but by seeing whether the person occupying it owes duties to the public in the discharge of that office. His Honour noted that cases such as Henly v. Mayor of Lyme[13] and Tampion v. Anderson[14] decided that the office was a public office on the ground that each occupier owed duties to the public and not by reference to any power that may be attached to it. His Honour considered that, on the basis of the authorities to which he referred, the applicants owed a duty to the public, and to the plaintiff as a member of it, to conduct the prosecution fairly. That duty, he considered, involved disclosing the information to the plaintiff in the course of the trial (and in the case of the first applicant, also involved disclosing the post-trial information to him). On that basis, the learned judge concluded that the "duty" requirement of the tort was satisfied and that, since the applicants were paid from public funds and were, at the relevant times, performing an important public service, they were holders of a public office for relevant purposes. His Honour also considered that the ability of the applicants to withhold the relevant material from the plaintiff effectively amounted to a power which was attached to the positions they held so that, on that basis, it could also be concluded that they were public officers.

Misfeasance in public office - parties' submissions

84. The parties accepted that the tort operates only in respect of a wrongful use of a public office by its occupant, and the real dispute between them centred largely on whether the applicants were holders of such an office at the time of the plaintiff's trial, and in the case of the first applicant, also at the time at which she came into possession of the post-trial information. There were other subsidiary disputes between the parties as will become apparent later. It was effectively submitted for the applicants that a critical feature of a public office is that it has attached to it a public power. This conclusion arises, it was said, from the fact that the tort is essentially concerned with the improper use of such a power by the holder of the public office. The applicants next argued that no such power was attached to the positions which they held at the relevant time. More particularly it was said that any ability they had to withhold the information (and in respect of the first applicant, the post-trial information) did not amount to a relevant power. Consequently, the applicants claimed that at no relevant time were they holders of a public office. It was further said that, even if they were public officers at the relevant time, and their non-disclosure of the relevant material to the plaintiff was an exercise of power by them and was intentional and malicious, such conduct was not done in breach of any duty that they owed to the plaintiff. Thus, the applicants' claimed, the plaintiff has no cause of action against them for misfeasance in public office.

87. The plaintiff, on the other hand, submitted that the courts have given "public office" a wide meaning for the purposes of the tort and, in that context, have identified a number of criteria by reference to which it may be determined whether an office is a public office. Thus, it was said, a key feature of a public office is that it imposes an obligation on the occupier of it to discharge certain duties in circumstances where the public has an interest in their discharge. It was said that, here, the applicants were under a public duty to conduct the Crown case in a fair and impartial manner and this meant that they were under an obligation to disclose the information to the plaintiff during his trial, and the first applicant was under a like duty to pass on to him the post-trial information. The plaintiff claimed that it mattered not to whom the duty of disclosure was owed - whether it be to the public, the court or the plaintiff. What was relevant was that the obligation of disclosure was for the benefit of the public in general and the plaintiff in particular. Alternatively, it was put for the plaintiff, if a key feature of a public office was that a relevant power was attached to it, then such a power was present in this case. That power, it was said, consisted of the applicants' ability to withhold from disclosure to the plaintiff the abovementioned material concerning the first defendant.

90. It was further submitted for the plaintiff that there were other circumstances which pointed to the applicants' position or office being a public office, namely:

(a) They were engaged in prosecuting the plaintiff on behalf of the Crown for breach of the criminal law.

(b) The applicants were officers of the court.

(c) They were required to act with a measure of independence.

(d) They were paid out of public funds for the performance of their prosecuting roles.

96. Moreover, said the plaintiff, the fact that a person in the position of the second applicant may be liable for misfeasance in public office was recognised in Elguzouli-Daf v. Commissioner of Police of the Metropolis[15]; Bennett v. Commissioner of Police for the Metropolis[16]; Grimwade v. State of Victoria[17] and Emanuele v. Hedley[18].

99. Hence, it was contended for the plaintiff that, at all relevant times, the applicants were holders of a public office and were capable of being held liable at the instance of the plaintiff in respect of the tort of misfeasance.

Nature and elements of the tort - abuse of power

103. In order to establish the appropriate criterion for determining if an office is a public office within the meaning of the tort and whether its holder can be made liable for the alleged misfeasance, it is necessary first to analyse the nature, the essential elements and the scope of operation of the tort. Although the origins of the tort can be traced back to the 17th century[19], it is only relatively recently that courts have accorded it unequivocal recognition and have articulated its essential elements. Thus, as Lord Steyn pointed out in Three Rivers District Council v. Bank of England (No.3)[20], the existence of the tort had even been denied by the Court of Appeal in 1910 in Davis v. Bromley Corporation[21]. Moreover, judging by the dearth of references to the tort in the decided cases it seems that, until relatively recently, little attention has been given to it by the courts or by the writers[22]. The existence of the tort, however, was confirmed in this jurisdiction in 1956 in Farrington v. Thomson & Bridgland[23] and by the Full Court in 1973 in Tampion v. Anderson and more recently in Little v. Law Institute of Victoria[24]. In 1981, it was described by the Privy Council in Dunlop v. Woollahra Municipal Council[25] as "the well-established tort" and the High Court in Northern Territory v. Mengel[26] and Sanders v Snell[27] assumed its existence as did the House of Lords in Three Rivers. It is still the case, however, that courts consider that the precise limits of the tort remain undefined[28].

106. Nevertheless, for present purposes, it can be said that it is relatively clear, on the authorities to which reference is made below, that the tort is essentially concerned with the abuse by the holder of a public office of a public power or one which must be exercised for the "public good"[29], and which is attached to the office. (We will refer to the power as "the relevant power".) It is a deliberate tort for which the defendant is personally liable and, relevantly, one of its essential constituents is malice in the sense explained later. Moreover, in order to succeed in an action founded on the tort, the plaintiff must establish that he or she is a member of the public to whom the defendant owed a duty to exercise the power legitimately , namely, only in the public interest and not for an ulterior purpose. For reasons which become apparent later, although the tort is ordinarily concerned with executive or administrative powers, it seems that it also operates in respect of the exercise of a judicial power; at least in certain contexts.

109. In considering the authorities in which the tort has been explained, it is convenient to look first at the well known decision of Smith, J. in Farrington[30]. In that case, the two defendants, one a superintendent of police and a licensing inspector in the Bendigo district, the other a sergeant of police stationed in the same area, effectively ordered the plaintiff to close his hotel and cease supplying liquor. They threatened to prosecute him if he failed to do so. Shortly prior to this incident, the plaintiff had been convicted for the third time for breaching the same section of the licensing legislation and the defendants believed that, as a result, his licence was automatically suspended. For reasons which are not presently relevant, his Honour found that, notwithstanding the convictions, the plaintiff's licence was not automatically suspended. More relevantly for present purposes, in order to persuade the jury that they had not threatened the plaintiff with force and had not purported to give him any binding orders, the defendants said in their evidence that they knew at the relevant time that they did not have the power to use force or give binding orders to the plaintiff (and hence, so their argument went, they would not have sought to give a binding order to the plaintiff to close the hotel). The jury, however, found that the defendants did so order the plaintiff and they answered in the negative the question: "Are you satisfied that the defendants were acting honestly in the intended execution of the provisions of the ... Acts?" His Honour concluded that, by so ordering the plaintiff and threatening him with prosecution, the defendants purported to exercise a power they pretended they had, but which they knew they did not have.

112. Smith, J. found[31] that each of the defendants was the holder of a public office and in that capacity had "a variety of powers and duties under the Act. ... These included powers, in certain circumstances, to make demands imposing obligations to obey." His Honour concluded that what the defendants did (namely, purporting to exercise a power they knew that they did not have and which was clearly going to result in financial and other harm to the plaintiff) amounted to a tort of misfeasance in a public office as against the plaintiff if it caused damage to him.

115. In the context of an analysis of the authorities dating back to Comyns' Digest, his Honour noted[32] that the tort may lie where the defendant's abuse of his (public) office has caused harm to the plaintiff. His Honour said:

"In my view, therefore, the rule should be taken to go this far at least, that if a public officer does an act which, to his knowledge, amounts to an abuse of his office, and he thereby causes damage to another person, then an action in tort for misfeasance in a public office will lie against him at the suit of that person."

119. In Mengel it was accepted that the cattle inspectors who had given the unlawful instructions which caused damage to the plaintiffs were, in light of the legislation under which they held their office, public officers, in the sense that the "office" so held was a public office for the purposes of the tort. It was also (impliedly) accepted that, in issuing the impugned orders to the plaintiffs, they were purporting to exercise powers that were attached to the office. The plaintiffs failed in their action based on the tort because they could not establish that the inspectors had acted with malice. The Court said[33] that the tort is a deliberate tort for which the wrongdoer becomes personally liable. There can be no liability in the tort, their Honours' said, unless malice is established on the part of the officer, in the sense that he or she has exercised the power with the intent of causing harm or has purported to exercise the power knowing that it did not exist or was reckless as to whether or not it was present (and there was a foreseeable risk of harm to the plaintiff or a class of which the plaintiff was a member).

122. That the tort is concerned with the wrongful exercise of a power that attaches to a public office was made clear by the majority in Mengel. In concluding that policy and principle suggest that the liability for misfeasance in public office is not constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage, but should be more closely confined, the majority said[34]:

"So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability[35]. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton[36], or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach."

Brennan, J. also spoke[37] of the tort as being concerned with the imposition of a liability on a public officer who, by use of "his position or power", causes loss to another. His Honour said[38]:

"Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff."

128. In Three Rivers, Lord Steyn said[39] that "the rationale of the tort is that in a legal system based on the rule of law executive or administrative power `may be exercised only for the public good' and not for ulterior and improper purposes..." His Lordship went on to identify[40] the ingredients of the tort, namely:

(a) the defendant must be a public officer

(b) the impugned conduct must be the exercise or the purported exercise of power as a public officer

(c) there must be malice in the exercise of the power. In other words, the power must be exercised for an ulterior purpose, with the intention of injuring the plaintiff. It is sufficient for that purpose if the public officer acts with knowledge that he has no power so to act or recklessly disregarding whether he has such power and knowing that his or her action will injure the plaintiff or a class of people which includes the plaintiff or if there is reckless indifference to the probability of causing injury to the plaintiff.

(d) the plaintiff must have sufficient interest to found a legal standing to sue

(e) the wrongful act causes the plaintiff's injury

(f) the damage must not be too remote[41].

134. The matter first came before the House of Lords as an appeal which arose from the decision of the trial judge on a strike-out application. So far as is relevant, the primary judge had decided that the defendant bank could not be liable to the plaintiffs for misfeasance in public office since the plaintiffs' alleged losses were not in law capable of being caused by the bank's acts or omissions. It was the plaintiffs' case that the bank was liable to them for misfeasance in public office in that it had either wrongly granted a licence to the deposit-taking company (through which the plaintiffs lost their money) or it had failed to revoke the licence when it knew, believed or suspected that it would probably collapse without being rescued. On the matter first coming before the House, their Lordships heard argument on the legal issues and deferred consideration of the factual issues. Thus, they first determined, inter alia, the scope of the tort of misfeasance in public office and in that context articulated the elements of the tort.

137. Following that decision, the plaintiffs provided new particulars of, inter alia, the alleged misfeasance on the part of the bank. The matter then returned to the House of Lords for argument whether, in light of their Lordships' decision on the legal issues and the new particulars, the plaintiffs' action was unsustainable and should be struck out as had been decided by the primary judge and the majority of the Court of Appeal. The House of Lords, by majority, rejected the bank's application for summary judgment and allowed the plaintiffs' appeal[42]. In the course of his speech in that case, Lord Hope of Craighead said[43] that "the correct test for misfeasance in public office was established by your Lordships' judgment following the previous hearing of this appeal ...". His Lordship then went on to state the essential elements of the tort which were relevant to the examination of the plaintiffs' new draft particulars. These elements included the following:-

(a) There must be an unlawful act or omission done or made in the exercise of the power by the public officer.

(b) As the essence of the tort is an abuse of power, the act or omission must have been done or made with the required mental element[44].

143. In Tampion v. Anderson[45] the first defendant was an inspector appointed by an Order in Council as a Board of Inquiry into scientology and the second defendant was counsel, from the Victorian Bar, briefed to assist the Board. So far as is relevant, the plaintiff brought an action against the defendants for misfeasance in public office. By his statement of claim he alleged that the defendants had acted in abuse of their respective offices and had failed to carry out their duties, and thereby they had committed a misfeasance in public office. At first instance, McInerney, J. held that neither defendant was a "public officer" for the purposes of the tort. After referring to R. v. Whitaker[46] and Henly, to which further reference will be made later in these reasons, his Honour rejected[47] the plaintiff's contention that "public officer" for the purposes of the tort extended, inter alia, to all public servants[48]. He recognised, however, that certain public servants, such as the Sheriff of the Supreme Court and members of the police force, do hold a public office. Although his Honour did not find it necessary to define the precise nature or extent of the interest which the public must have in the performance of the duty before the office can be regarded as a public office, he concluded that counsel appointed to assist a Board of Inquiry or a Royal Commission is not a public officer even though counsel's fees are provided for out of public revenue. His Honour said that such counsel was in no sense answerable to members of the public for the performance or non-performance of his or her duty. Such counsel was answerable to the client, to the instructing solicitor and to the Board or Commission but to no-one else. His Honour also held that the inspector was not a public officer.

146. The Full Court dismissed the appeal from his Honour's decision. We will refer later to what their Honours said as to the circumstances in which a public position may amount to a public office for the purposes of the tort. For the present, it is relevant to note that, when speaking of the cause of action, their Honours did so in the context of the impugned act amounting to an abuse of a power which the holder of the office was under a duty to exercise in the interest of the public of which the plaintiff was a member. Relevantly, their Honours said[49]:

"The action has been held to lie in respect of an act done in purported exercise of statutory or common law powers incident to such an office where those powers are knowingly exceeded: cf. Farrington v. Thomson and Bridgland, [1959] VicRp 49; [1959] V.R. 286; [1959] A.L.R. 695, and authorities there cited. But to be able to sustain an action upon this basis a plaintiff plainly must not only show damage from the abuse; he must also show that he was the member of the public, or one of the members of the public, to whom the holder of the office owed a duty not to commit the particular abuse complained of."

A little later, when speaking of a person in the position of the first defendant in that case, their Honours said[50] that the possession by that person of certain statutory powers which, by then, had been attached to that position, was "no ground for holding that in all that he does he is to be regarded as exercising a public office, in the sense above described. It may, however, be arguable that for a conscious abuse of his statutory powers such a person is liable as for misfeasance in a public office".

151. Their Honours concluded that, even if an action was maintainable against a person acting as the Board of Inquiry for conscious abuse of those statutory powers, the matters alleged in the plaintiff's pleadings could not constitute an abuse of any of the statutory powers in question. In the circumstances, their Honours said[51] that the claim against the first defendant was not maintainable. The Full Court went on to say[52] that the plaintiff's case against the second defendant was "even more plainly unsustainable. For his position as counsel assisting the Board was obviously not a public office in the relevant sense, and he had no statutory powers with respect to the inquiry."

154. Thus, for present purposes, it would seem that the necessary components of the tort involve:

(a) The misuse or abuse by the holder of a public office of a relevant power which is an incident of the office.

(b) That such wrongful conduct was actuated by malice in the sense that the power was used, not for the public benefit, but for an ulterior purpose with the intent that harm be caused to the plaintiff (or in reckless disregard of such a likely consequence) or that there was a purported exercise of the power with knowledge that it did not exist (or in reckless disregard as to its existence).

In order to succeed in a claim based on misfeasance in a public office, the plaintiff must also establish that the duty to exercise the relevant power properly was owed to him as a member of the public.

Is the tort confined to the exercise of executive or administrative power?

160. In order better to understand the nature and the ambit of operation of the tort we must examine briefly whether it operates in respect of an abuse of a judicial power that is attached to a public office. Given that most cases are concerned with allegedly wrongful exercise of an executive or administrative power, it is not difficult to find judicial observations which could be taken as confining the operation of the tort to the exercise of such powers. Thus, for example, Lord Steyn in Three Rivers, when speaking of the rationale of the tort in the passage to which reference has been made earlier, did so only in respect of executive or administrative powers. Similarly Nourse, L.J. in Jones v. Swansea City Council[53] spoke[54] of the operation of the tort in the context of "the holder of an office of government" and of "public servants". The same may be said of the majority judgment in Mengel. But, as we have said, these cases dealt with allegedly wrongful acts which were of an executive or administrative nature and what was said in those cases about the operation of the tort must be construed in that context.

163. In Farrington, however, Smith, J. sought to confine the operation of the tort to the abuse of executive or administrative power as appears from this passage in his Honour's judgment[55].

"In Henly v. Mayor & Burgesses of Lynne [1828] EngR 701; (1828), 5 Bing. 91, at pp.107-8, it is laid down by Best, C.J., as perfectly clear law that `if a public officer abuses his office' and by the `act of abuse in his office, any individual sustains an injury, that individual is entitled to redress in a civil action' against the public officer. It was pointed out in Fitzgerald v. Boyle (1861), 1 Q.S.C.R. 19, that this language should not be treated as applying to acts done in the exercise of judicial functions, but subject to this limitation the law as stated by Best, C.J., was there approved. See also Halsbury, 2nd ed., vol.26, section 579; Chaster, Public officers, at p.631."

167. Fitzgerald v. Boyle, however, does not support the contention that the tort has no operation in respect of an abuse of a judicial power. In that case the defendant was the Commissioner of Crown Lands. It was alleged by the plaintiff that, in breach of his duty, the defendant joined in tendering for part of the plaintiff's land under another name and in reporting to the Government that the tender was unobjectionable. In determining whether the defendant was liable at common law for acting in breach of his duty, Lutwyche, J. addressed the issue whether the defendant was a public officer, and in doing so considered whether officers exercising judicial duties (as well as those exercising ministerial duties) might be liable in such an action. Relevantly, the learned judge said[56] that "public officers, acting in a judicial capacity, are not responsible in damages for an injury to an individual resulting from an act or commission on their part, unless they advisedly outstep the limits of their jurisdiction, or there be proof of malice ...". A little earlier in his reasons[57] his Honour had referred to Linford v. Fitzroy[58], saying that the case involved:

"an action against a justice of the peace for refusing to take bail on a charge of misdemeanour, [and that] the Court of Queen's Bench, after taking time to consider their decision, came to the conclusion that the duty of a magistrate in respect to admitting bail is purely a judicial duty; and they laid it down that when the duty of the magistrate is not purely and simply ministerial, he cannot be made liable to an action for a mistake in doing, or omitting to do, anything in the execution of his duty, unless he can be fixed with malice".

Although what Lutwyche, J. said might now have to be read subject to what was said in In re McC. (A minor)[59], to which reference will be made later, as to the availability of the tort against a judicial officer for acting maliciously, but within jurisdiction, it seems clear enough that his Honour did not consider that a public officer was totally immune from liability for the tort merely because he was exercising a judicial function.

172. That a judge may be liable for misfeasance in public office where he had acted without jurisdiction and with malice was recognised in Anderson v. Gorrie[60], although their Lordships also acknowledged[61] that a judge of a court of record cannot be made liable in respect of something done by him or her within jurisdiction albeit maliciously and contrary to good faith[62]. Similarly, in Re McC. Lord Bridge of Harwich said[63], albeit expressly by way of obiter,:

"It is ... clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say: `That is a perverse verdict,' and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass. But, as Lord Esher M.R. said in Anderson v. Gorrie [1895] 1 Q.B. 668, 670: `... the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie.' The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction."

A little later his Lordship said that, although the common law rule was then different in relation to justices of the peace, the "old common law `action on the case as for a tort' against justices acting within their jurisdiction maliciously and without reasonable and probable cause no longer lies." The case arose in Northern Ireland and it is apparent from his Lordship's remarks that he intended his observations to apply to judges and magistrates in Northern Ireland as well as in Wales and England.[64]

178. In Mengel, Brennan, J. also seems to have accepted that a holder of a public office, who performs a judicial function, might be liable for the tort. The matter obviously did not arise for resolution in that case since the impugned acts of the inspectors were wholly administrative. Nevertheless, so far as is relevant for present purposes, his Honour said[65]:

"Any act or omission done or made by a public official in purported performance of the functions of the office can found an action for misfeasance in public office. Public officers perform a great variety of functions some of which have a judicial element in them. We can put aside the cases which have a judicial element, as the directions which the inspectors gave in this case were wholly administrative."

One of the cases cited by his Honour in support of his view was Fitzgerald v. Boyle.

183. A relatively recent case that dealt squarely with whether judicial officers could be liable for misfeasance in a public office is Rawlinson v. Rice[66], a decision of the New Zealand Court of Appeal constituted by five judges. The relevant facts of the case can be briefly stated. The plaintiff was accused of indecently assaulting the daughter of his former partner. The child's mother applied to the court ex parte and obtained an interim non-molestation order directed to the plaintiff. The (District Court) judge refused to set it aside notwithstanding that he was told that he had no power to make such an order. Subsequently, the order was discharged. The plaintiff then brought an action for damages against the judge, who had by then retired, for, inter alia, misfeasance in a public office. It was alleged that the defendant acted throughout the non-molestation proceedings with malice (in the broader legal sense encompassing recklessness). It was also alleged that he had knowingly acted without jurisdiction. The primary judge struck out the plaintiff's claim because he considered that malice, being an essential ingredient of the tort, had not been sufficiently pleaded. When the matter first came before the appeal court (then constituted by three judges), it decided by a majority that the pleadings were capable of supporting the plaintiff's claim. But the court reserved for further argument before a bench of five judges whether "public office" for the purposes of the tort extends to judicial office.

186. It was argued for the defendant[67] that "in its modern conception the tort of misfeasance in public office has as its target the conduct of the executive - of public administrators - and that such modern authority as there is indicates that for this tort Judges are not public officers." The Court of Appeal rejected this submission saying[68] that it could not find any "authority for the proposition that an action on the case did not lie against a judicial officer for knowingly acting without, or in excess of, jurisdiction and with malice." The court concluded[69], after reviewing a large number of cases, including Re McC, Fitzgerald, Henly, the Victorian cases to which we have referred earlier and Mengel, that the District Court judge "is a public officer and so within the scope of the tort of misfeasance in public office". In the circumstances, the order striking out the plaintiff's claim was set aside[70].

189. In light of the authorities, it would seem that the operation of the tort may extend to the wrongful exercise by a holder of a public office of a judicial power where that power is sought to be exercised without jurisdiction and in bad faith[71].

194. We now turn to consider what are the principal criteria for determining whether an office is a public office for the purposes of the tort. The plaintiff's case was that the question is to be resolved essentially by reference to whether the applicants were required to perform public duties. The applicants, however, contended that it depends on whether a relevant power was attached to their positions. That the meaning of "holder of a public office" depends on the circumstances of the case has been amply demonstrated by Byrne, J. in McCann[72], in a judgment which includes a valuable examination[73] of the range of circumstances in which the question was considered. It is also the case that, as the plaintiff submitted, the courts have given "public office" a wide meaning (for the purposes of the tort). Thus, in Three Rivers Lord Steyn said[74] that "[i]t is the office in a relatively wide sense on which everything depends" and Lord Hobhouse said[75] that the "holder of a public office" is a broad concept. Be that as it may, it seems that, since the tort is essentially concerned with the misuse of a relevant power which is an incident of a public office, it follows as a matter of practicality that an office cannot be characterised as a public office for the purposes of the tort if no relevant power is attached to it. Put another way, an essential feature of such a public office is that a relevant power is an incident of it. So much seems to follow from the cases to which we have already referred.

197. Nevertheless it may be accepted that there are other criteria by which the existence of a public office might be determined. Courts have, for example, identified such an office by reference to the public duties that its holder is required to discharge. Thus, a public office has been described as one to which duties attach in the discharge of which the public has an interest. For example, in Henly, a case which is often regarded as the starting point for the ascertainment of whether a person is a public officer[76], Best, C.J. said[77] that "every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the crown or otherwise, is constituted a public officer". It seems clear enough that the Chief Justice was there referring to a person who was appointed to an office and who was under an obligation to discharge the duties of that office in the public interest. That is made clear by his Lordship's reference to the person being "appointed" and by his later reference to the liability of a public officer who has "abused his office". In that case the plaintiff brought an action claiming damages for the defendant's failure to maintain a sea wall which collapsed and which allegedly caused damage to the plaintiff. Under the grant to it of the sea wall and the associated revenue, the council was required to maintain the sea wall. Best, C.J. said: "If a public officer abuses his office either by an act of omission or commission ... and any individual sustains an injury (by reason of that abuse of office) that individual is entitled to redress in a civil action." A like definition of "public officer" was given in R. v. Whitaker[78] where the Court had to consider, inter alia, whether the accused (who was charged with bribery) was a "public officer" within the meaning of the relevant legislation. In delivering the judgment of the court, Lawrence, J. said[79]:

"A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public. If taxes go to supply his payment and the public have an interest in the duties he discharges, he is a public officer".

Similarly in Tampion v. Anderson, although the Full Court had no doubt that for the purposes of the tort "[e]mployment with the Crown is not necessarily a public office," their Honours went on to say[80] that "[t]he office must be one the holder of which owes duties to members of the public as to how the office shall be exercised." And in Sanders the majority observed[81] that "misfeasance in a public office is concerned with performance of public duties".

202. It has also been suggested that a public office may be identified by reference to the trappings of the office in question and other like matters. For instance, the submission was made in Tampion v. Anderson[82] that "the essence of a public office is that there are some public posts usually remunerated from public revenues (although this is not essential) where the holder of the office has a duty not only to his employer, who is usually the Crown, but also to members of the public as such." Similarly, Mr. Holdenson, for the first and second applicants, submitted in this Court that the indicia of a public office includes some or all of the following:

(a) the title given to the position

(b) the fact that the position is not an occasional one

(c) the office exists separate from its holder

(d) the person is appointed to that post

(e) it has tenure

(f) the remuneration in question comes from public funds

(g) the office requires the performance of certain specific functions for the benefit of the public

(h) the holder is the repository of specified conferred powers which attach to the office

(i) the exercise of the powers is not subject to the direction of others and

(j) the position is one of responsibility.

208. Where the occupier of a public office is required to discharge duties and the public has an interest in their discharge, powers that are necessary to perform those duties are commonly attached to the office. Similarly, where it is established that a position or office has relevant powers attached to it, it is almost invariably the case that they must be exercised only so as to enable its occupier to perform the public duties of the office. Hence, it is not surprising that, in speaking of the hallmarks of a public office within the meaning of the tort, courts have sometimes spoken in terms of public duties, and sometimes in terms of relevant powers, and on other occasions, in terms of both public duties and relevant powers. In addition, courts have also referred in that context to other circumstances which tend to indicate that the position is a public office, such as the public source of the funding of the office. Thus, in Farrington, Smith, J. spoke[83] in a single sentence of the two policemen having "powers and duties". Similarly, in Henly, Best, C.J. recognised that the public officer who is required to discharge the duties of the office in the public interest also has relevant powers which attach to that office. His Lordship spoke of a public officer who has supposedly "abused his office" and an office is ordinarily "abused" for relevant purposes only if the powers of that office are exercised otherwise than in the public interest as, for example, where they are exercised for an ulterior purpose. Likewise, in Tampion v. Anderson, when the Full Court spoke of the duties of the office holder to members of the public as to how the office would be exercised, it did so in the context of recognising in the very next passage of its judgment that the tort is concerned with the abuse of the office and the purported exercise of statutory or common law powers which are "incident to such an office".

211. Consequently, it may be appropriate in some (but certainly not all) circumstances to assess whether an office is a public office by reference not only to the public duties that are attached to it but also to the trappings of the office. If, however, an essential element of the tort is the misuse by the holder of the public office of a relevant power that is attached to it, it must follow that the elements of the tort are not sufficiently established unless there is a relevant power attached to the office in question. A plaintiff who sues for misfeasance in public office must therefore establish, inter alia, that the office has a relevant power attached to it. Having thus established that the office is a public office for the purposes of the tort, it would be unnecessary for the plaintiff to rely on the trappings or other criteria of a public office for the purpose of determining whether a particular position is such an office.

214. Not every position in which the occupier is required to perform a function in which the public has an interest is necessarily a public office for the purposes of the tort. Hence, the public duty criterion will not in every case be an appropriate guide to whether the position in question is a public office, for the purposes of establishing the tort. For example, a position or office which involves the discharge of a prosecutorial function, whether by the Director or by a member of the Bar briefed to that end, may be said to involve the discharge of public duties or responsibilities or duties in which the public has an interest in that the representation of the State in the prosecution of an accused is involved, giving rise to other duties to which reference will be made later. But for reasons which are given below, a prosecutorial function does not in our view carry with it any relevant power so that it could not be properly said of a prosecutor appearing at a trial that he or she occupies a public office for the purposes of the tort.

217. Assuming, as we do, that the tort of misfeasance in a public office is concerned with the misuse of public powers which are incidents of the office, it is necessary to consider the nature and extent of the powers or duties which attached to the positions which the applicants held during the relevant period. For that purpose, it is desirable to put in context the role of the prosecutor in the conduct of the Crown case and to explain the obligations and responsibilities imposed upon such a prosecutor.

221. What is sometimes called the "prosecutor's obligation to act fairly", one aspect of which is the prosecutor's "duty of disclosure", does not spring from any statutorily given power, but from practices established by judges over the years which have been designed to ensure that an accused person receives a fair trial. Those practices have included a requirement that notice be given by the Crown of additional witnesses proposed to be called beyond those whose names are on the "back of the presentment"; providing to the accused names of material witnesses (and, perhaps, their statements) whom it is not proposed to call; the provision of medical reports by prison doctors about the state of mind of accused persons in custody; providing particulars of relevant prior convictions of witnesses whom the Crown intends to call; and making sure that the defence is informed of previous convictions of the accused, so that a view can be formed as to the advisability of putting the character of the accused in issue. These rules of practice, calculated to enhance the administration of criminal justice by ensuring that accused persons have a "fair trial", are collected in the speech of Lord Devlin in Connelly v. Director of Public Prosecutions[84]. As his Lordship noted, it is the court itself which carries the responsibility of ensuring that an accused has a "fair trial", and, to that end, will enforce practices such as those which extend to controlling the form of presentment or indictment to prevent abuses of the court's process which involve unfairness to the accused. This practice, at least to an extent, is implicit in the Presentment Rules to be found in the 6th Schedule to the Crimes Act in this State. Likewise, the judges have established practices which are designed to give an accused person adequate notice of the particulars of the offence with which the accused is charged[85].

224. The prosecutor's "duty of disclosure" has been the subject of much debate in appellate courts over the years. But, as it seems to us, authority suggests that, whatever the nature and extent of the "duty", it is a duty owed to the court and not a duty, enforceable at law at the instance of the accused. This, we think, is made apparent when the so-called "duty" is described (correctly in our view) as a discretionary responsibility exercisable according to the circumstances as the prosecutor perceives them to be. The responsibility is, thus, dependent for its content upon what the prosecutor perceives, in the light of the facts known to him or her, that fairness in the trial process requires. Ormiston, J.A. in R. v. Garofalo[86] pointed out some of the circumstances which will or might affect the content of the "disclosure obligation". The High Court in R. v. Apostilides[87] enumerated certain propositions as being applicable to the conduct of criminal trials in Australia, one of which was that "the Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown". The Court went on to say that this was not intended to be an exhaustive description of the prosecutor's responsibility. The Court did note, however, that the prosecutor's "role in this regard is a lonely one" which is not able to be shared with the judge; and further[88] that the "responsibility" was not only "lonely" but "heavy" in the sense that the prosecutor's decision had to be made "with due sensitivity to the dictates of fairness towards an accused person".

227. It must be emphasised, however, that the prosecutor's responsibility in this regard is discretionary. As was pointed out by Barwick, C.J., McTiernan and Mason, JJ. in Richardson v. R.[89]:

"Once it is acknowledged that the prosecutor has a discretion and that there is no rule of law requiring him to call particular witnesses, it becomes apparent that the decision of a prosecutor not to call a particular witness can only constitute a ground for setting aside a conviction if it constitutes misconduct which ... gives rise to a miscarriage of justice."

The prosecutor's obligation to act fairly, with due regard to the interests of the accused, has been variously described as a "duty", an "obligation", a "responsibility", or "a function". But the history of its development demonstrates that, however it is described, the "duty" is owed to the court and not to the public at large or the accused. It is a significant aspect of the administration of criminal justice and the court's capacity to ensure the accused's right to a fair trial. As Lawson, L.J. said in R. v. Hennessey (Timothy)[90]:

"[T]he courts must keep in mind ... that those who prepare and conduct prosecutions owe a duty to the Courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence. We have no reason to think that this duty is neglected; and if it ever should be, the appropriate disciplinary bodies can be expected to take action. The judges for their part will ensure that the Crown gets no advantage from neglect of duty on the part of the prosecution." (our emphasis)

This statement was adopted by the Court of Appeal in R. v. Ward[91] and by the House of Lords in R v. Brown (Winston)[92]. However, as the Court of Appeal in Ward's case pointed out[93], a breach of the duty by the prosecutor would not only be remedied by professional sanctions but might amount to a material procedural irregularity in the trial producing a miscarriage of justice and a setting aside of the conviction.

234. The historical development of the prosecutor's "duty of disclosure", its discretionary nature and the variability of the circumstances which will inform its content all confirm that it is a duty which is owed to the courts and not to the accused or the public generally. Further, it seems to us that the obligation is one which lacks the characteristics of a duty, breach of which is enforceable at law at the instance of the accused, whether by way of "malicious prosecution" or "misfeasance in a public office". The prosecutor does not have a duty, as his Honour seems to have assumed, to ensure that the accused has a fair trial. The prosecutor's obligation is to assume standards of fairness which will assist the court in the fulfilment of its task of ensuring that the accused has a fair trial. As Newton, J. and Norris, A.J. pointed out in R. v. Lucas[94], prosecuting counsel are "ministers of justice" whose duty it is "to assist the court in the attainment of the purpose of criminal prosecutions, namely to make certain that justice is done between the subject and the State". The obligation is, we think, ethical in nature[95] and, quite apart from any question of prosecutorial immunity, is incompatible with the existence of the type of public power or duty breach of which will or might support an action for the tort of misfeasance. As Deane, J. said in Whitehorn v. R.[96], those requirements of "the standards [of fairness] are not ... directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or action for damages. Apart from disciplinary action against prosecuting counsel if failure to observe those standards amounts to professional misconduct, the sanctions available to procure their observance are mainly to be found in the powers of the trial judge ... to ensure that an accused receives a fair trial and the powers of the appellate court to quash a conviction if the failure of the Crown to observe them has resulted in the accused being denied a fair trial."

237. In the concluding part of this judgment, we endeavour to show that, despite the existence of certain dicta which have been expressed as to the outer limits of the tort, there is no authority conclusively supporting the proposition that the tort of misfeasance in a public office can be relied upon by an accused person who claims to have suffered a loss, as a result of the deliberate or reckless neglect by a prosecutor of the so-called duty to act fairly[97].

Did a power attach to the applicants' positions?

241. In considering this question, it is convenient to deal first with the position of the second applicant who, as we have said, was at the relevant time a member of the independent Bar and was briefed by the Solicitor for Public Prosecutions to appear for the Crown to prosecute at the plaintiff's trial[98]. In our view, it is plain, having regard to what we have said, that the position of prosecutor did not have, as an incidence of it, any relevant power. As Mrs. Crennan, who appeared for the Director, pointed out in her helpful and informative submissions by reference, inter alia, to the history of the Office of the Crown Prosecutor[99], even the Director and a statutorily appointed Crown Prosecutor, each of whom is, probably, a holder of a public office, are not invested with any relevant powers in respect of the conduct of a prosecution. Whatever powers may be said to attach to the office of the Director, for example, when appearing in court to prosecute at a trial, he or she does not thereby exercise any relevant power but, rather, performs a function of the office, that being to represent the Crown at a criminal trial.[100] That function incorporates the ethical "duties of fairness" to which we have previously referred. This position applies, a fortiori, to the second applicant who, as a member of the Bar was bound, subject to exceptions which are not presently relevant, to accept any brief that was proffered to him. When briefed to prosecute at the plaintiff's trial he did not thereby assume any office and did not acquire any relevant power as prosecutor. Throughout the trial he did no more than fulfil his brief by appearing as prosecutor. Nowhere in R. v. Apostilides[101], where the High Court laid down[102] a number of general propositions applicable to the conduct of a criminal trial, including the obligations of the prosecutor, was it suggested that, in conducting the prosecution or in making relevant decisions as to its conduct, the prosecutor is exercising any relevant power, whether judicial, executive or administrative.

244. The plaintiff argued that there is judicial support in a number of cases for the claim that a prosecutor in the position of the second applicant is capable of being held liable for misfeasance in public office in respect of the conduct of a prosecution. The first case was Elguzouli-Daf v. Commissioner of Police of the Metropolis[103] where the two plaintiffs were arrested, charged and detained for serious offences (IRA bombings), but after periods of detention, the proceedings against them were discontinued by the Crown Prosecution Service ("CPS"). The plaintiff then brought civil proceedings against, inter alia, the CPS. The first plaintiff claimed that it was negligent in failing to act with reasonable diligence in the planning, processing and communicating the results of forensic scientific evidence tending to support his innocence. The second plaintiff claimed that it should not have taken the CPS 85 days to conclude that the prosecution was bound to fail.

247. While the case was essentially concerned with whether the CPS owed a duty of care to the plaintiffs (the court ultimately finding that no such duty was owed), some members of the court referred briefly, by way of obiter, to the operation of the tort of misfeasance in a public office in the context of that case. Steyn, L.J., for example, said[104]:

"It is also necessary to consider the tort of misfeasance in public office. The essence of the tort is the abuse of public office. Potentially such liability might attach to a decision of a C.P.S. prosecutor. But, as the law stands, the plaintiff has to establish either that the holder of the public office maliciously acted to the plaintiff's detriment or that he acted knowing that he did not possess the relevant power. ... But it would be wrong to say more in this case about this complex area of the law. By way of summary, one can say that as the law stands a citizen, who is aggrieved by a prosecutor's decision, has in our system potentially extensive private law remedies for a deliberate abuse of power."

On the other hand, Morritt, L.J. said the following[105]:

"...not only would it be surprising to find a common law duty in the circumstances that the C.P.S. is a recent creature of statute but under no statutory duty to individuals, but it would suggest that in this field at least the independent torts of malicious prosecution and misfeasance in a public office are unnecessary. ... In the case of the latter knowledge of the want of power is an essential element. If the plaintiffs are right want of reasonable care will suffice. To conclude that the duties for which the plaintiffs contend do exist would be to disregard the danger to which Lord Templeman referred in Downsview Nominees Ltd. v. First City Corporation Ltd. [1993] A.C. 295, 316, namely: `of extending the ambit of negligence so as to supplant or supplement other torts, contractual obligations, statutory duties or equitable rules in relation to every kind of damage including economic loss...'"

254. The next case relied upon by the plaintiff was Bennett v. Commissioner of Police for the Metropolis and Crown Prosecution Service (sued as Director of Public Prosecutions)[106], a decision of Sir Richard Scott, V-C. The relevant facts were the following. In January 1991, the plaintiff, a citizen of New Zealand, was wanted in England to answer charges relating to obtaining a helicopter by dishonest means. A warrant for his arrest was issued but could not be served because he had left England for South Africa. The authorities in that country sought to deport him and, as a result of the request made by the English police to their South African counterparts, the plaintiff was placed on a flight from South Africa to London, being ostensibly the first stage of his deportation to New Zealand. No arrangements, however, had been made for his flight from London to New Zealand. When the flight arrived in London, the plaintiff was arrested and charged with the offences in question. He was committed in custody to stand trial. He commenced judicial review proceedings in respect of his detention which resulted in the Divisional Court quashing his committal on the ground that he had been brought to the United Kingdom in defiance of extradition procedures. The judge also found other impropriety on the part of British authorities. Once he was released, and being no longer at risk of being prosecuted, the plaintiff issued proceedings claiming damages against the defendants in respect of his detention alleging against them, inter alia, misfeasance in a public office.

257. The matter came before the Vice-Chancellor as a result of a strike-out application. So far as is relevant, the defendants claimed that the statement of claim did not allege the requisite elements of the tort and, even if it did, the defendants were immune from suit. Relevantly, they argued that the immunity rule extended to anything said or done by a crown prosecutor in the course of the investigation or prosecution of a criminal offence. His Lordship considered[107], however, that, for public policy reasons, neither the police nor the CPS was entitled to a blanket immunity. He went on to say that, if public prosecutors and the police may be liable for malicious arrest and malicious prosecution, by implication they could also be held liable in tort for misfeasance in public office. The Vice-Chancellor concluded, however, that, in the case before him, the cause of action could not be maintained because of the failure to plead malice and that, in any event, the claim had become statute-barred.

260. The above observations of Steyn, L.J. and Sir Richard Scott V-C do not materially advance the plaintiff's case because the CPS, unlike the second applicant, is probably a public office and thus, capable perhaps of being held liable for the tort in certain circumstances. Steyn, L.J. described[108] the CPS as an autonomous and independent "public law enforcement agency", established under the Prosecution of Offences Act 1985, charged with the prosecution of offences, an office therefore which has a status materially different from that of an independent barrister who has been briefed to prosecute the accused in a criminal proceeding. Further, in Elguzouli-Daf the relevant complaint related to the exercise by the CPS of the power to discontinue the prosecution, and in Bennett, the principal allegation was directed to the circumstances in which the CPS initiated the prosecution.

263. We mention for completeness that the plaintiff in this case also relied on the fact that the above observations of the Vice-Chancellor in Bennett were cited with apparent approval by Lord Hutton in Darker v. Chief Constable of the West Midland Police[109]. In Darker, however, the House of Lords was concerned with an issue that was quite different from that facing this Court, namely, whether absolute immunity was to be accorded to what police officers did and said in the purported conduct of their duties. Moreover, it is apparent that the defendant in that case was a public officer and thus, was a person against whom the tort might lie.

266. The next case upon which the plaintiff relied is Grimwade v. State of Victoria[110]. In that case, the plaintiff had been convicted of criminal offences after two very long trials. The conviction was quashed on appeal and the plaintiff then issued civil proceedings against the State of Victoria pleading numerous causes of action and seeking damages arising out of his prosecution. Wrongful conduct was alleged, inter alia, against the Director and counsel from the Victorian Bar who had appeared as prosecutor at the plaintiff's trials. The plaintiff claimed that the State was vicariously liable for their conduct. The defendant issued a summons seeking that certain questions be determined before the trial of the proceeding, those questions being, in essence, whether the matters alleged by the plaintiff entitled him to any of the relief claimed. Much of the argument before his Honour was taken up with the question whether vicarious liability attached to the Crown for the allegedly wrongful conduct of those involved in the prosecution of the plaintiff.

269. The judge concluded[111] that the plaintiff's pleadings did not sufficiently allege excess of power or malice on the part of, inter alia, the prosecutor, although his Honour did not rule out the possibility that the deficiencies in the statement of claim on this issue might be capable of being cured. His Honour then turned to consider whether prosecuting counsel could call for any relevant immunity; and, if not, whether the State was liable for torts committed by counsel whom it engages to prosecute. In that context, and when discussing whether prosecuting counsel is absolutely immune from a suit for malicious prosecution, his Honour said that he could see no reason in principle, subject to the reservations expressed by Brett, M.R. in Munster v. Lamb[112], why prosecutors should not be liable for wrongs inflicted

maliciously in the course of the exercise or purported exercise of their authority[113].

274. The plaintiff in this case contended that, had the prosecutor in Grimwade been sued and had the statement of claim alleged the ingredients of the tort, the judge would have allowed the claim against him, based on misfeasance in public office, to proceed. But even if one accepted the plaintiff's interpretation of his Honour`s decision, the observations by his Honour on this issue were clearly obiter. They were not intended to be a definitive statement as to whether a prosecutor from the independent Bar is a public officer and whether he or she can be held liable in the tort in respect of an allegedly wrongful act committed in the course of conducting the prosecution.

277. We now turn to Emanuele v. Hedley[114] on which the plaintiff also relied. In that case the defendant, a Commonwealth officer, entrapped the plaintiff into bribing him in relation to some tenders. The plaintiff was convicted of the alleged wrongdoing but his conviction was set aside on appeal. He then brought proceedings against a number of persons, including prosecutors and the defendant. One cause of action which he pursued against the defendant was misfeasance in a public office. Higgins, J. held that, on the pleadings, there was no arguable allegation of any lack of authority on the part of the defendant in the performance of the acts in question. By pretending to act outside his authority so as to give the impression that he was corruptible, the defendant was in fact acting within his authority. Hence, his Honour struck out that allegation. In our view, this case does not advance the plaintiff's argument because, although his Honour assumed that the prosecutors could be subject to liability for the tort, he was not called upon to rule and did not rule on the issue.

280. Consequently, as we have said, the judicial observations on which the plaintiff relies in support of his claim that a prosecutor in the position of the second applicant is capable of being held liable for the tort, do not support his contention in that regard. The position of the second applicant as prosecutor was, in reality, no different from that of the second defendant in Tampion v. Anderson in respect of whom the Full Court said[115] that "his position as counsel assisting the Board was not a public office in the relevant sense, and he had no statutory powers with respect to the enquiry." In our view, the second applicant in this case cannot be regarded as having held a public office during the plaintiff's trial.

283. The same applies, even more strongly, to the first applicant who was a Crown servant[116] and was employed as a solicitor and a member of "staff" of the Director until 1 July 1994[117] and thereafter, as a member of "staff" of the Office of Public Prosecutions (although in the latter position she conducted her work under the supervision and direction of the Solicitor for Public Prosecutions[118]). In that capacity, the first applicant instructed the second applicant in the plaintiff's trial. Thereafter, she continued to have the day to day conduct of matters pertaining to the plaintiff, such as the subsequent medical examination of the first defendant and related developments that led to the quashing of the plaintiff's conviction for revenge rape in the circumstances already referred to. It is clear that under the relevant legislation, she was not the holder of an office; she was, as has already been mentioned, a member of "staff" of the Director. By way of contrast, the legislation explicitly recognises certain "officers", for example, the Director[119], the Acting Director[120], the Crown Prosecutor[121] and the Solicitor (for Public Prosecutions)[122]. It is clearly evident from this that the first applicant's position had no relevant power attached to it. Her obligations, in our view, could rise no higher than that imposed on prosecuting counsel[123].

286. We mention for completeness the plaintiff's claim that the applicants were, in fact, seized of a relevant power, namely, the ability to disclose to the plaintiff or withhold from him the relevant information concerning the first defendant, and, by denying this information to the plaintiff, did so in breach of their duties to him. The plaintiff claimed that this so-called power which the applicants held had to be exercised by them in the public interest and their failure to disclose the relevant material to him amounted, in the circumstances of this case, to an abuse of that power. Hence, it was argued for the plaintiff, the applicants could be held liable for misfeasance in public office. In our view, however, this argument cannot be accepted. The applicants' decision not to pass on the information to the plaintiff during the trial was no more than an exercise of a discretion that was vested in them as part of their respective roles in the prosecution of the case. It should not be forgotten that the only information which the applicants held during the trial was information that the first defendant claimed to have been raped and assaulted by the plaintiff's cousin in the same way that she was claiming to have been raped by the plaintiff. The same characterisation applies to the first applicant's decision to withhold the post-trial information from the plaintiff. It is clear that it was passed on to those whom she served; and that is how it came into the hands of the plaintiff's lawyers.

289. It is convenient to mention at this point that, in light of what we have said earlier concerning the duties of a prosecutor and, as we say again in the next part of these reasons, we are of the opinion that the applicants did not owe the plaintiff any legal duty to disclose the information to him during the trial, or, so far as concerns the first applicant, the post-trial information, after the trial. It follows that, even if the question whether the applicants held a public office is to be determined by reference to whether they owed public duties, since the applicants owed no such duties, they could not be properly characterised as public officers.

292. For these reasons, we are of the opinion that the applicants fell outside the class of persons who may be regarded as public officers for the purposes of the tort.

296. But even if we are wrong in that conclusion and the correct position is that the applicants did hold a public office at the relevant time and that their failure to disclose the information to the plaintiff during the trial (and the failure by the first applicant to pass on the post-trial material to the plaintiff) amounted to a wrongful exercise of that power as the plaintiff alleges, such wrongful conduct could not expose them to liability to the plaintiff for misfeasance in public office because, as we have already said, their duty to conduct the prosecution fairly, and to disclose the information to the plaintiff, was not one which was owed to the plaintiff. The duty to conduct the prosecution fairly was essentially an ethical duty and, if it was owed to anyone, it was as we have said, owed to the court as is made plain in Richardson v. R.[124] and in Whitehorn v. R.

299. In the first case, the High Court[125] held that the failure on the part of the Crown Prosecutor to call in the Crown case an eye-witness to the incident giving rise to the offence charged did not of itself constitute a ground for setting aside a conviction and ordering a new trial. Relevantly, their Honours said[126] that it is "a misconception to speak of the prosecutor as owing a duty to the accused to call all witnesses who will testify as to the events giving rise to the offence charged." In Whitehorn, Deane, J. said[127], in effect, as we have previously noted, that, although the Crown should conduct the prosecution fairly, the requirements to do so are not directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or action for damages.

302. Dawson, J. in that case explained[128] in the following terms the content and the extent of a prosecutor's duty to conduct the trial fairly:

"No doubt all of these observations [as to the prosecutor's duty to call all available material witnesses] are merely aspects of the general obligation which is imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he performs in a criminal trial. That function is ultimately to assist in the attainment of justice between the Crown and the accused. In this respect the Crown Prosecutor may have added responsibilities in comparison with other counsel but it does not mean that his is a detached or disinterested role in the trial process."

It was not suggested by his Honour that such a duty was owed to the accused. Thus, as we have said, the applicants did not owe any legal duty to the plaintiff to disclose information to him of the type alleged in paragraphs 30A to 30D of the further amended statement of claim.

308. Consequently, we are of the firm view that no action for misfeasance in public office can lie against the applicants in respect of their alleged conduct during the plaintiff's trial or against the first applicant in respect of her alleged conduct thereafter. In light of that conclusion, it is not necessary to consider the other grounds of appeal pressed by the applicants. It follows that their appeal should succeed and that his Honour's orders of 8 March 2002, in so far as they relate to them, should be set aside and in lieu of them, it should be ordered:

(i) That the relevant questions be answered as follows:

Question (a) - not necessary to answer.

Question (b) - not necessary to answer.

Question (c)(i), (ii) - No.

(d)(i), (ii) - No.

(e) - No.

(f) - No.

(ii) That there be judgment for the applicants.

[1] R. v. Robert Tahche, Court of Appeal, unreported, 27 September 1995.

[2] The two applicants were joined as defendants pursuant to leave granted by his Honour on 30 March 2001.

[3] In terms, the plaintiff alleges in paragraph 30B of his pleadings that the information was received "during or prior to [his] trial". It is apparent from the particulars to a number of paragraphs of the pleading, however, that the allegation is limited to the claim that the information in question was received during the trial. Mr. Gorton, for the plaintiff, conceded as much during the hearing before us.

[4] As has been previously mentioned, the plaintiff was released from gaol on 27 July 1995.

[5] It is convenient to mention at this point that, at the hearing of the application by the applicants for leave to appeal, they sought a stay of the costs order pending the hearing and determination of the appeal. The plaintiff did not oppose such an order and consequently, the Court ordered that the costs order be stayed for the period sought.

[6] [1978] VicRp 62; [1978] V.R. 669 at 670 per Young, C.J. and Jenkinson, J.

[7] Niemann v. Electronic Industries Ltd. [1978] VicRp 44; [1978] V.R. 431 at 441-2 per Murphy, J.

[8] [1987] VicRp 41; [1987] V.R. 460 at 463 per Marks, J. with whom Murphy and McGarvie, JJ. agreed.

[9] [1995] VICSC 195; [1995] 2 V.R. 622 at 626 per Callaway, J.A.

[10] At 623 per Brooking, J.A. with whom Charles, J.A. agreed.

[11] [1988] HCA 52; (1988) 165 C.L.R. 543.

[12] Although the applicants and the Director made separate submissions to this Court, they adopted one another's submissions and, in effect, made common cause. Consequently, we will not differentiate between their respective submissions unless we indicate otherwise and, for convenience, we will simply refer to the two sets of submissions as being those of the applicants.

[13] [1828] EngR 701; (1828) 5 Bing 91; 130 E.R. 995.

[14] [1973] VicRp 70; [1973] V.R. 715 (FC).

[15] [1994] EWCA Civ 4; [1995] Q.B. 335 at 347.

[17] (1997) 90 A.Crim.R. 526 at 567-568.

[18] [1997] ACTSC 13; (1997) 137 F.L.R. 339.

[19] Turner v. Sterling [1726] EngR 585; (1671) 2 Vent. 25; 86 E.R. 287.

[20] [2000] UKHL 33; [2000] 2 W.L.R. 1220 at 1229.

[21] [1908] 1 K.B. 170.

[22] See Tampion v. Anderson [1973] VicRp 70; [1973] V.R. 715 at 720 per Smith, Pape and Crockett, JJ.

[23] [1959] VicRp 49; [1959] V.R. 286.

[24] [1990] VicRp 25; [1990] V.R. 257 at 269-270, 291.

[25] [1982] A.C. 158 at 172.

[27] (1998) 196 CLR 329 at 344 per Gleeson C. J., Gaudron, Kirby and Hayne JJ.

[28] Sanders, at 346; Mengel at 345; Tampion (F.C.) at 720.

[29] See Sanders at 344; Three Rivers at 1230; Jones v. Swansea City Council [1990] 1 W.L.R. 54 at 71 per Slade, L.J. and at 85 per Nourse, L.J. The decision was reversed on the facts but not on the law by the House of Lords - [1990] 1 W.L.R. 1453 at 1458.

[30] The majority in Mengel referred, at 345, to Farrington as "one of the seminal cases on misfeasance in public office."

[33] At 345-348 per Mason, C.J., Dawson, Toohey, Gaudron and McHugh, JJ.; at 356-357 per Brennan, J.

[35] See James v. The Commonwealth [1939] HCA 9; (1939) 62 C.L.R. 339 at 359-360, per Dixon, J. See also Racz v. Home Office [1994] 2 A.C. 45 at 50-54, per Lord Jauncey of Tullichettle.

[36] [1897] 2 Q.B. 57.

[41] The speeches of the other members of the House of Lords are to the same effect. More particularly, the speech of Lord Hutton [1258-1267] is concerned principally with the mental element of the tort, but it does not relevantly differ from Lord Steyn's analysis of it. Lord Hope of Craighead said [at 1236] that he was in "full agreement" with what was said (by Lord Steyn and Lord Hutton) as to the essential elements of the tort. A like view is found in the speech of Lord Hobhouse of Woodborough [at 1267]. Lord Millett, although expressing [at 1273] "full agreement" with the judgments of Lord Steyn and Lord Hutton, went on to set out in his "own words" what he "considered to be the elements of the tort of misfeasance in a public office. For present purposes, there is no difference in substance between what was said by Lord Millett and what was said by Lord Steyn on the subject.

[42] Three Rivers District Council v. Bank of England (No.3) [2001] UKHL 16; [2001] 2 All E.R. 513.

[44] The other members of the House of Lords, Lord Steyn (at 516), Lord Hutton (at 550), Lord Hobhouse (at 571) and Lord Millett (at 577) either effectively agreed with Lord Hope or expressed like views.

[45] [1973] VicRp 32; [1973] V.R. 321 per McInerney, J.; and at 715 per the Full Court - Smith, Pape and Crockett, JJ.

[46] [1914] 3 K.B. 1283 at 1296 per Lawrence, J.

[48] See also Ex parte Kearney (1917) 17 S.R.(N.S.W.) 578.

[55] At 293. We note that in Little v. Law Institute of Victoria, at 291, Ormiston, J.A. said that "It may be doubted whether this cause of action [i.e. misfeasance] extends beyond the consequences of a knowingly illegal or unauthorised act, that is, an administrative act which directly has an adverse effect on the plaintiff's person ...".

[58] [1849] EngR 31; (1849) 13 Q.B. 240.

[59] [1985] 1 A.C. 528.

[60] [1895] Q.B. 668 at 671 per Lord Esher M.R. with whom Kaye and A.L. Smith, L.JJ. agreed.

[62] These views are not inconsistent with the views expressed by McInerney, J. as to judicial immunity in Tampion v. Anderson at 331.

[64] Lord Elwyn-Jones and Lord Templeman agreed with the dicta of Lord Bridge, as did Lord Brandon of Oakbrook in so far as what was said as to the position in Northern Ireland. Lord Keith of Kinkel reserved the question "whether the liability of justices for acts done within their jurisdiction but with malice and without probable cause should be treated as having fallen into desuetude."

[66] [1998] 1 N.Z.L.R. 454.

[70] It should be noted that the decision was concerned with a judge of an inferior court which, unlike the superior court of record, has no inherent jurisdiction in that regard. Nevertheless, the judgment of the Court of Appeal does not seem to draw a distinction between a superior court and an inferior court for these purposes.

[71] In Victoria, this issue is largely governed by statute in relation to inferior courts. A judge of the County Court and a magistrate are, relevantly, placed in the same position as a judge of the Supreme Court by s.9A of the County Court Act 1986 and s.14 of the Magistrates' Court Act 1989 respectively.

[72] (1997) 95 A.Crim.R. 308.

[76] See, for example, Mengel at 355 per Brennan, J.

[77] At 107-8; [1828] EngR 701; 130 E.R. 995 at 1001.

[78] [1914] 3 K.B. 1283.

[84] [1964] A.C. 1254 at 1347 ff.

[85] cf. K.R.M. v. R. [2001] HCA 11; (2001) 75 A.L.J.R. 550 at 554 per McHugh, J.

[87] [1984] HCA 38; (1984) 154 C.L.R. 563 at 575, per Gibbs, C.J., Mason, Murphy, Wilson and Dawson, JJ.

[89] [1974] HCA 19; (1974) 131 C.L.R. 116 at 121-2.

[90] (1978) 68 Cr.App.R. 419 at 426; see also Abbott v. Refuge Assurance Co. Ltd. [1962] 1 Q.B. 432 at 451.

[91] [1993] 1 W.L.R. 619 at 645, per Glidewell, Nolan and Steyn, LJJ.

[92] [1997] UKHL 33; [1998] A.C. 367 at 375.

[93] At 642. Cf R. v. Lewis-Hamilton [1998] 1 V.R. 630.

[94] [1973] VicRp 68; [1973] V.R. 693 at 705.

[95] Professional Conduct, Practice and Etiquette, The Victorian Bar, (Sir Gregory Gowans) at 81-2: "It is [the prosecutor's] duty as a representative of the State to assist the jury in arriving at the truth by fairly and impartially exhibiting all the facts ...".

[96] [1983] HCA 42; (1983) 152 C.L.R. 657 at 665; see also Ormiston, J.A. in R. v. Garofalo at 637ff.

[97] We note that in Milgaard v. Mackie & Ors. (1994-09-06) SKCA, CA 9412, to which we were referred by Mr. Gorton, the Court of Appeal for Saskatchewan held, in the context of a strike-out application, that the tort of "abuse of statutory power" (which the court said was also known as "abuse of process or abuse of office") was available to the accused against Crown counsel who prosecuted at his trial arising out of the prosecutor's allegedly malicious failure to disclose to the accused information which was relevant to his defence. The Court of Appeal apparently considered that the action lay because, in initiating and prosecuting criminal offences against the accused, the Attorney-General and his agent, the prosecuting Crown counsel, were exercising statutory powers. In this case, however, for the reasons we give, the second applicant exercised no statutory powers when prosecuting at the plaintiff's trial.

[98] Sections 11, 38(1)(b) of the Public Prosecutions Act 1994 ("the 1994 Act").

[99] Holdsworth, A History of English Law, Vol.III at 620-622; Vol.XV at 160.

[100] See, for example, ss.22(1)(a) and 25 of the 1994 Act.

[101] [1984] HCA 38; (1984) 154 C.L.R. 563.

[102] At 575 per Gibbs, C.J., Mason, Murphy, Wilson and Dawson, JJ.

[103] [1994] EWCA Civ 4; [1995] Q.B. 335.

[106] (1997) 10 Admin. L.R. 245.

[109] [2000] UKHL 44; [2001] 1 A.C. 435 at 469-471.

[110] (1997) 90 A.Crim.R. 526.

[112] (1883) 11 Q.B.D 588 at 604.

[113] His Honour rejected (at 567, 570) the plaintiff's claim that the State could be vicariously liable for the civil wrongdoings of the prosecutor and said (at 568) that a public officer with a discretion in the execution of an independent legal duty is alone responsible for tortious acts committed in his or her office.

[114] [1997] ACTSC 13; (1997) 137 F.L.R. 339.

[116] Public Service Act 1974; Public Service Management Act 1992.

[117] Section 8 Director of Public Prosecutions Act 1982.

[118] Part VII of the 1994 Act.

[119] Sections 4 and 5 of the 1982 Act and ss.4, 6 and 7 of the 1994 Act.

[120] Section 7 of the 1982 Act; s.9 of the 1994 Act.

[121] Section 32-34 of the 1994 Act.

[122] Section 37 of the 1994 Act.

[124] [1974] HCA 19; (1974) 131 C.L.R. 116.

[125] Barwick, C.J., McTiernan and Mason, JJ.