misfeasance in public office
103 Mr Fernando's claim that the Acting Minister had engaged in misfeasance in a public office was pleaded in paragraph 49 of his further amended statement of claim. That paragraph read:
"Further or alternatively, the Second Respondent's actions as pleaded in paragraphs 31 and 33 above constituted a misfeasance by the Second Respondent in his office as Acting Minister."
For the most part paragraph 31 contained allegations relating to the conduct of departmental officers. The only allegation made in it against the Acting Minister was that he had failed to give Mr Fernando the opportunity to make submissions to him about prejudicial material contained in Annexure L to the submissions considered by the Minister when he had decided, in November 2001, to cancel Mr Fernando's visa. Annexure L was not placed before the Acting Minister in October 2003. Nor was any other document which contained the same or similar prejudicial material.
104 Paragraph 33 pleaded that:
"By reason of the matters pleaded in paragraph 31 above, when the second respondent decided the Second Cancellation he had no jurisdiction to do so and, accordingly, the Second Cancellation was a nullity and of no effect."
105 As can be seen paragraphs 31 and 33 go no further than alleging that, because of the actions of departmental officers, the Acting Minister had no jurisdiction to cancel Mr Fernando's visa. Nowhere in the body of the further amended statement of claim did Mr Fernando deal with the Acting Minister's state of mind at the time at which he made his decision. That issue was, however, dealt with in particulars sub-joined to paragraph 49.
106 Mr Fernando alleged that the Acting Minister had engaged in misfeasance in his office when he cancelled Mr Fernando's visa. It was alleged that the Acting Minister knew or ought to have known when he made his decision that he had no jurisdiction to do so or, alternatively, that he made the determination with reckless disregard to the question of whether or not he had the necessary jurisdiction to do so. The alleged lack of jurisdiction was linked, in argument, to the Acting Minister's determination to proceed to make a decision in the knowledge that Mr Fernando had forwarded written submissions which had yet to be received.
107 The recent history of the development of the tort of misfeasance in public office in Australia can be traced to the High Court's decision in Northern Territory v Mengel (1995) 185 CLR 307. In their joint judgment (at 345) Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ noted that the weight of authority in Australia and the United Kingdom clearly established that misfeasance in public office was "a deliberate tort". Their Honours continued (at 347):
"The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. 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. 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.
…
If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power."
108 Deane J expressed himself somewhat less tentatively than (but not inconsistently with) the plurality. His Honour said (at 370-1) that:
"… the tort of misfeasance in public office is 'well established'. Its elements are: (i) an invalid or authorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff. That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case. The critical element for present purposes is malice.
In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff … Such malice will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness … to that invalidity or lack of power and that likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied."
109 In Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 224; [2001] UKHL 16, Lord Hutton said that Deane J's judgment was important because it emphasised "that the second limb of the tort is a species of malice, and that the requirement for malice is satisfied where the public officer knows that the abuse of power will cause injury, or is recklessly indifferent or deliberately blind to the likely injury."
110 In dealing with the mental element of the tort Lord Steyn (at 191) observed that:
"The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injury a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."
111 In Sanders v Snell (2003) 130 FCR 149; [2003] FCAFC 150 a Full Court of this Court reviewed subsequent Australian authorities. Their Honours said (at 175-6) that:
"[98] Reference should also be made to Australian decisions at first instance decided after Mengel and Sanders v Snell. The first of these, two of them decisions of judges of this court, Martin v Tasmanian Development & Resources (1999) 89 IR 98, involved termination without notice of a contract of employment. An action for misfeasance in public office was brought against the Chief Executive Officer of Tasmanian Development and Resources, which is a public authority. The claim for misfeasance failed because the CEO was found to be acting honestly and on the basis that he was acting within power. Heerey J said (at 119):
This tort is committed where a holder of a public office acts in that capacity either with intention to cause harm or knowingly in excess of his or her power … The public office holder must know that the act is beyond the power and that it involves a foreseeable risk of harm.
His Honour did not advert to recklessness, no doubt because the case was not put on that basis.
[99] The tort was also considered in the context of a pleadings dispute by Weinberg J in McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 who, in addition to the elements referred to by Heerey J, adverted to the recklessness element (455). In dealing with the pleading of the cause of action his Honour said (at 459):
Whatever view may be taken of the requisite state of mind on the part of the person said to have committed this tort, it is not sufficient to plead that the minister ought to have known that he was exceeding his powers or contravening designated Commonwealth laws. Northern Territory v Mengel (1995) 185 CLR 307 at 347-348. Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ, in a joint judgment, held that the elements of the tort of misfeasance in public office are the infliction of damage and either an intention, as the actuating motive, to inflict damage or the performance of an act which the public officer knows is beyond power and which involves a foreseeable risk of harm.
His Honour added that at the very least it must be pleaded that the Minister has recklessly disregarded the means of ascertaining the extent of his or her power and not that he has merely acted with reckless indifference to the applicants.
[100] In Rowan v Cornwall (No 5) (2002) 82 SASR 152, Debelle J, after reviewing the authorities observed (at 358):
There are two forms of the tort. The first is where the public officer acts with an intention to injure a person or persons. It is sometimes called acting with targeted malice … The second is where the public officer knowingly acts in excess of his or her power and with knowledge that it would cause or be likely to cause injury, or acts with reckless indifference to possible lack of power or invalidity and likely injury.
That was a case in which the tort was made out against a Minister of the Crown, who without observing procedural fairness, and in the process of denying funding to a women's shelter, published a report containing unsubstantiated allegations against the shelter operators. This was done, so it was found, with the intention of silencing the shelter operators in any subsequent political debate. Debelle J found that the Minister had acted in an improper way and with an intention to cause harm (at 361)."
112 Although he did not disavow reliance on the first form of the tort, Mr Fernando's case, as argued, centred on the contention that the Acting Minister knowingly or recklessly exceeded his power by cancelling Mr Fernando's visa despite being aware that Mr Fernando had forwarded written submissions which, it was to be assumed, sought to persuade the Acting Minister against doing so.
113 Mr Fernando submitted that it was open to the trial judge, on the material summarised above at [60], to "find that, in addition to intending the harm which befell [him] in the form of the loss of his liberty, [the Acting Minister] knew that he had no power to cancel the visa before the arrival of the documents, or alternatively was reckless as to whether he had the power." The period which had been allowed to Mr Fernando to make submissions was, it was submitted, unreasonably short in the circumstances and there was nothing in the material before the Acting Minister (apart from administrative convenience) which would have precluded a decision being delayed until the submissions had arrived and been considered. Mr Fernando also emphasised the failure of the Acting Minister to give evidence as to his state of mind at relevant times and the absence of any suggestion that he was unable to give such evidence at the time of the trial. On this latter point Mr Fernando invoked the rule in Jones v Dunkel.
114 The Acting Minister contended that an adverse finding was not open on the evidence and complained that the trial judge had failed to pay sufficient regard to the constraint imposed on him by s 140 of the Evidence Act 1995 (Cth).
115 It was for Mr Fernando to adduce sufficient evidence to support, on the balance of probabilities, a finding that the Acting Minister had committed misfeasance in a public office. In the context of the present case this required him to establish that the Acting Minister knowingly acted in excess of his power in the knowledge that the cancellation of Mr Fernando's visa would cause him injury or would be likely to do so or that the Acting Minister acted with reckless indifference to the possibility that he lacked power to make the cancellation decision when he did. The Acting Minister's state of mind at the time at which he made his decision was a matter peculiarly within his knowledge. The Acting Minister did not give evidence. In these circumstances it was open for the trial judge more readily to infer, on the evidence, that the Acting Minister had one of the necessary states of mind. It was not, however, open to the trial judge to rely on the Acting Minister's failure to give evidence to make good a deficiency in Mr Fernando's case.
116 In Jones v Dunkel at 312 Menzies J said that:
"…(i) that the absence of the defendant … as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference."
117 In Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 124; [1993] FCA 297 Wilcox J noted that:
"Jones v Dunkel … is often cited for its statements about the effect of a party failing to call a person with knowledge of the relevant facts; the matters discussed in Menzies J's second and third propositions. People sometimes overlook that these statements were made against the background of findings by all three majority judges that there was material entitling the jury to infer negligence. In that situation the defendant's failure to [give evidence] could be taken into account in determining whether the inference should in fact be drawn. The statements in Jones v Dunkel give no support to the proposition that the failure to call a witness may itself provide the basis of an adverse inference. An inference must be founded in evidence. As Menzies J said, the absence of a particular witness 'cannot be used to make up any deficiency of evidence.'"
See also: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293 at 300-302 (per Barker J); Qantas Airways Limited v Transport Workers' Union of Australia (2011) 280 ALR 503 at 511-514 (per Moore J).
118 It is, therefore, necessary to examine with some care the material on which Mr Fernando relied in inviting the trial judge to draw adverse inferences relating to the Acting Minister's state of mind. That evidence principally included the documents which were placed before the Acting Minister and upon which he determined to cancel Mr Fernando's visa. Mr Fernando also relied on communications that passed between the Acting Minister's staff and departmental officers prior to the decision being made and some exchanges which passed between departmental officers but which the evidence did not suggest had come to the attention of the Acting Minister.
119 Carr J's decision, handed down on 16 September 2003, was the catalyst for a flurry of activity on the part of departmental officers. E-mail exchanges commenced on that day and continued until 3 October 2003 when the Acting Minister made his decision: see above at [8]-[29]. The exchanges included communications, in the last week of September 2003, between departmental officers and the Acting Minister's office: see above at [11], [13]-[14], [19].
120 There can be no doubt that the departmental officers involved with Mr Fernando's case thought that it would be desirable for a fresh decision to be made under s 501(2) of the Act before Mr Fernando was released on parole on 5 October 2003. A notice of intention to cancel Mr Fernando's visa was prepared and served on him within a day or two of Carr J's decision. The notice required Mr Fernando to provide any submissions which he wished the Minister to consider on or before 1 October 2003. In the meantime enquiries were made and administrative procedures were put in place with a view to ensuring that, no later than 3 October 2003, a ministerial decision would be made on whether or not to cancel Mr Fernando's visa. Whether or not this activity can properly be characterised as a "Departmental stratagem", it is clear that the departmental officers involved were anxious to ensure that a further decision was made before Mr Fernando was released from prison. The contacts with the Minister's office would have ensured that his staff were aware that the departmental officers considered that an urgent decision was needed and that that decision should, ideally, be made before 3 October 2003. The fact that the Acting Minister was prepared to make himself available at short notice in his Brisbane office to make the necessary determination and did so suggests that the sense of urgency which energized the departmental officers was conveyed to the Acting Minister. The Acting Minister was specifically advised, in the issues paper, that Mr Fernando was due for release on 5 October 2003.
121 Whilst the Acting Minister was willing to make a decision in accordance with the Department's desired timetable, it does not follow that he necessarily did so in a manner which constituted misfeasance in a public office. Mr Fernando's case was that, on 3 October 2003, the Acting Minister knew or ought to have known that he had no jurisdiction to make the decision. In the alternative he contended that the Acting Minister proceeded to make the decision with reckless disregard to the question of whether or not he had the necessary jurisdiction to do so. The contention that the Acting Minister lacked jurisdiction was, in turn, founded on the assertion that the Minister knew (or recklessly disregarded the possibility) that he would deny Mr Fernando procedural fairness if he made his decision before he received and considered Mr Fernando's written submissions.
122 The trial judge was prepared to infer that the Acting Minister appreciated that a person in Mr Fernando's position was entitled to have his or her comments on material matters relating to the proposed cancellation of a visa considered before any decision was made and that, if he did not delay making a decision until Mr Fernando's submissions were to hand and had been considered, he would be acting unlawfully by proceeding to cancel the visa. These findings assume that the Acting Minister turned his mind to the question of whether it was necessary for him, in order to make a valid decision, to await receipt of the submissions and then made a conscious choice to make a decision on 3 October 2003 without waiting for Mr Fernando's submissions to arrive.
123 The principal foundation for the drawing of the adverse inference was the fact that the Acting Minister knew that the Minister's earlier decision had been quashed by Carr J on the ground that Mr Fernando had been denied procedural fairness. The trial judge cast the basis for Carr J's decision very broadly. He said that Carr J had found that a denial of natural justice had occurred because Mr Fernando was not afforded the opportunity to comment upon "the substance of the information material to the cancellation decision." The Acting Minister knew this. As a result he knew, his Honour held, that if Mr Fernando was denied "the opportunity of having his comments on matters material to the cancellation decision considered as part of the decision making process", there would be a further denial of procedural fairness.
124 With respect, we consider that his Honour erred in the way in which he sought to draw inferences based on the Acting Minister's knowledge of the reasons for the Court's decision to quash the earlier decision. Whilst it is literally true that Carr J's decision was made because Mr Fernando had not been given the opportunity of commenting on "matters material" in the making of the earlier decision, it is to be borne in mind that those matters were prejudicial matters which were dealt with in an annexure (Annexure L) to the departmental submission to the Minister. Mr Fernando had not been given access to the Annexure or provided with the substance of its contents.
125 In the present proceeding, Mr Fernando had been provided with all of the material which had been given to the Minister and had been provided with the opportunity (albeit within 14 days) to respond to that material. The Acting Minister had been advised of the true basis of Carr J's decision and that Annexure L had not been placed before him. The 14 day period which was afforded to Mr Fernando accorded with what was then standard departmental practice. That practice was not called into question until some three years later when Sales was decided. There was nothing in the departmental minute which suggested to the Minister that he might err in law if he proceeded to make the decision before receiving and considering Mr Fernando's submissions. Indeed, it was implicit in the minute that he was empowered to make a decision as soon as he had received and considered the departmental brief. Moreover, the Acting Minister was aware that Mr Fernando had been given 14 days in which to make his submissions. The Acting Minister had not indicated to Mr Fernando that if the submissions were sent before the 14 days expired but took longer to arrive in the Acting Minister's office, no decision would be made until they had been received and been considered.
126 A competing inference was, therefore, open. It was that the Acting Minister proceeded on the basis that Mr Fernando had had the opportunity normally accorded persons in his position to make written representations relating to the proposal to cancel his visa and that he had not availed himself of that opportunity in a timely manner. In such circumstances Carr J's decision did not require the Acting Minister to defer making a decision simply because he had been advised that Mr Fernando's submissions were "in the mail". It is one thing to withhold material and prejudicial information from a person whose visa might be cancelled; it is another altogether to proceed to a decision in the knowledge that all prejudicial material has been placed before the visa holder and an opportunity provided to respond but that opportunity has not been availed of within the time allowed.
127 It may well be thought that the better course would have been for the Acting Minister to have deferred a decision until Mr Fernando's submissions had arrived and been considered. It does not follow, however, that, in deciding to proceed to make a decision on 3 October 2003, the Acting Minister knew that he would be denying Mr Fernando procedural fairness or that he was recklessly indifferent to that possibility.
128 Section 140 of the Evidence Act partly codifies the statements made by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2. It provides:
"(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged."
129 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132, a Full Court of this Court considered the standard of proof required in civil proceedings in the light of Briginshaw and the requirements of s 140. The Court said (at 480 [32]) that:
"The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion."
The Full Court continued (at 482 [37]), saying that:
"Ultimately, because this is a civil, not criminal, proceeding the civil standard of proof applies. Thus, the ACCC had to establish that the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability, that [the impugned conduct had occurred]."
130 A finding that a Commonwealth Government Minister has deliberately exercised an important statutory power knowing that, in doing so, he was acting unlawfully is properly to be characterised as grave. The legal consequences are potentially serious as too is the effect on the Minister's reputation. In circumstances in which, on the facts found, conflicting inferences are open and one of those inferences is favourable to the respondent, the Court will not be satisfied that the applicant's case has been proved to the necessary standard. For the reasons which we have explained this is such a case.
131 We therefore consider that the appeal against the awards of damages, both general and exemplary, for misfeasance in a public office should be allowed.