[2002] VSCA 84
Cornelius v Hackney London Borough Council [2003] LGR 178
[2008] HCA 32
Garrett v Attorney General [1997] 2 NZLR 332
Grass v Slattery [2018] FCA 1719
(2018) 162 ALD 276
Henly v Mayor of Lyme (1828) 5 Bing 91
130 ER 99
Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122
Source
Original judgment source is linked above.
Catchwords
[2002] VSCA 84
Cornelius v Hackney London Borough Council [2003] LGR 178[2008] HCA 32
Garrett v Attorney General [1997] 2 NZLR 332
Grass v Slattery [2018] FCA 1719(2018) 162 ALD 276
Henly v Mayor of Lyme (1828) 5 Bing 91130 ER 99
Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122[2016] FCA 31
Northern Territory of Australia v Mengel (1995) 185 CLR 307[1995] HCA 65
Nyoni v Shire of Kellerberrin (2017) 248 FCR 311(2016) 338 ALR 234
Obeid v Lockley (2018) 98 NSWLR 258[2018] NSWCA 71
Odhavji Estate v Woodhouse [2003] 3 SCR 263[2018] All ER (D) 57
Sanders v Snell (1998) 196 CLR 329[1998] HCA 64
Sanders v Snell (No 2) (2003) 130 FCR 149[2010] HCA 28
Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1[2000] 2 WLR 1220
White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298[2007] FCA 511
Wickstead v Browne (1992) 30 NSWLR 1[1992] NSWCA 272
Wickstead v Browne (1993) 179 CLR 688 (note)
Judgment (14 paragraphs)
[1]
Leinenga v Logan City Council [2006] QSC 294
Lock v Australian Securities and Investments Commission (2016) 248 FCR 547; [2016] FCA 31
Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65
Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59
Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294
O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Obeid v Ipp [2016] NSWSC 1376; (2016) 338 ALR 234
Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71
Odhavji Estate v Woodhouse [2003] 3 SCR 263; [2003] SCC 69
Petersen v Nolan [2020] QCA 56
Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth of Australia [2015] QSC 175
Rees v Commissioner of Police for the Metropolis [2017] EWHC 273
Rees v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587; [2018] All ER (D) 57
Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64
Sanders v Snell (No 2) (2003) 130 FCR 149; [2003] FCAFC 150
Shire of Kellerberrin v Nyoni [2018] HCATrans 27
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1; [2000] 2 WLR 1220
White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511
Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272
Wickstead v Browne (1993) 179 CLR 688 (note); (1993) 10 Leg.Rep SL 2
Texts Cited: M Aronson, "Misfeasance in Public Office: Some Unfinished Business" (2016) 132 Law Quarterly Review 427
PD Finn "Public Officers: Some Personal Liabilities" (1977) 51 Australian Law Journal 313
Category: Principal judgment
Parties: Song Ea (Applicant)
Dana Diaconu (First Respondent)
Director of Public Prosecutions of the Commonwealth of Australia (Second Respondent)
Commonwealth of Australia (Third Respondent)
Representation: Counsel:
A C Canceri (Applicant)
N Williams SC with T L Phillips (First, Second and Third Respondents)
[2]
Solicitors:
O'Brien Criminal & Civil Solicitors (Applicant)
Australian Government Solicitor (First, Second and Third Respondents)
File Number(s): 2019/235412
Publication restriction: Nil.
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law
Citation: [2019] NSWSC 795
Date of Decision: 03 July 2019
Before: R A Hulme J
File Number(s): 2018/170562
[3]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[4]
HEADNOTE
[This headnote is not to be read as part of the judgment]
In 2012, Mr Ea (the applicant) was prosecuted for offences of conducting a business of sexual servitude and trafficking foreign sex workers. Ms Diaconu (the first respondent and an officer of the Australian Federal Police) gave evidence in the applicant's trial. The applicant alleged that during the applicant's cross-examination, while seated in the public gallery and in view of the jury, the first defendant engaged in behaviour such as laughing, shaking her head, throwing her head back, rolling her eyes, and grinning in response to answers given by the applicant. The judge at the applicant's first criminal trial accepted that there had been misbehaviour amounting to improper conduct by the first respondent and dealt with the issue by giving directions to the jury. The jury in the trial was unable to agree upon any verdicts and was discharged. In a second trial the applicant was convicted of some only of the offences charged.
In 2018, the applicant commenced proceedings alleging that the first respondent had committed the tort of misfeasance in public office by reason of the manner in which she conducted herself while seated in the public gallery of the court room during the applicant's trial. In 2019, the primary judge found that the applicant had failed to identify any public power or duty exercised by the first respondent and summarily dismissed the proceedings pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).
The issue on appeal was whether the primary judge erred in concluding that the proceedings should be summarily dismissed.
The Court held, granting leave to appeal and allowing the appeal:
Per Payne JA:
The functions of a "case officer" which are relied upon by the applicant are not "powers" or "duties" in the sense of statutory or common law powers or duties. The conduct of the first respondent was not a purported exercise of a statutory or common law power or duty: [56].
However, it is arguable that in acting as she did, the first respondent was purporting to exercise a "power" in the sense of a de facto power, being a capacity to act, that was an incident of her office as an Australian Federal Police officer. That capacity to act as a "case officer" was, in that sense, capable of giving rise to a purported use of public power, at least in the sense that element was satisfied in Nyoni: [57].
Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59, discussed.
[5]
Judgment
PAYNE JA: The parties to the proceedings are Mr Song Ea (the applicant), Ms Dana Diaconu (an officer of the Australian Federal Police and the first respondent), the Director of Public Prosecutions of the Commonwealth of Australia (the second respondent), and the Commonwealth of Australia (the third respondent).
Between 2012 and 2015, the applicant was prosecuted for offences of conducting a business of sexual servitude and trafficking foreign sex workers contrary to ss 270.6(2) and 271.2(1B) of the schedule to the Criminal Code Act 1995 (Cth) and two aggravated offences of allowing a non-citizen to work in breach of a visa condition, contrary to s 245AC(2) of the Migration Act 1958 (Cth).
The applicant's claim relates to the first of his two trials. The jury in that trial was unable to agree upon any verdicts and was discharged. In a second trial in 2014, a jury returned verdicts of not guilty for the Criminal Code offences and verdicts of guilty for the statutory alternative offences in their basic form under s 245AC(1) of the Migration Act.
On 31 May 2018, the applicant commenced proceedings alleging the torts of misfeasance in public office and malicious prosecution. On 3 July 2019, the primary judge made an order under Uniform Civil Procedure Rules 2005 (NSW) r 13.4(1) summarily dismissing the applicant's statement of claim: Ea v Diaconu [2019] NSWSC 795.
If leave to appeal is granted, the only ground of appeal now pressed is:
"1. The Court below erred in finding that the appellant's claim for misfeasance in public office against the first respondent was hopeless and doomed to fail."
The claim of misfeasance in public office is pleaded against only the first and third respondents. Whilst the applicant originally sought leave to appeal against the whole of the primary judge's decision, on 21 February 2020 (six days prior to the hearing), the Court was informed that the applicant no longer pressed the appeal so far as it related to malicious prosecution. As leave to appeal is not now sought from the primary judge's orders granting summary judgment in relation to the allegation of malicious prosecution (which was alleged against all three respondents) it is common ground that regardless of the outcome of this application the primary judge was correct to dismiss the proceedings against the second respondent and correct to dismiss the malicious prosecution claim against the remaining respondents.
[6]
The statement of claim
The applicant's statement of claim was filed on 31 May 2018. The statement of claim alleged that the first respondent (and the third respondent, who was vicariously liable in respect of torts committed by the first respondent) committed the tort of misfeasance in public office by reason of the manner in which she conducted herself whilst seated in the public gallery of the court room during the first of the two criminal trials of the applicant.
On 11 February 2019, the respondents filed a motion seeking orders, relevantly, under UCPR rr 13.4(1) and 14.28(1), that no reasonable cause of action was disclosed.
The pleadings in respect of the alleged behaviour of the first respondent were:
"11. During the course of the plaintiff's cross-examination, the first defendant, who was seated behind the prosecutor and in view of members of the jury:
(a) On several occasions laughed and shook her head in response to answers given by the plaintiff to the prosecutor;
(b) On several occasions threw her head back, gestured as if she were laughing and when so gesturing covered her mouth; and
(c) On several occasions rolled her eyes and grinned in response to answers given by the plaintiff to the prosecutor's questions.
12. Further, when counsel for the plaintiff provided an opening of the plaintiff's defence to the jury the first defendant, in view of members of the jury, shook her head from side to side as if to indicate her disagreement with what was being said by counsel for the plaintiff.
13. Further, on several occasions during the trial the first defendant made eye contact with members of the jury and smiled.
14. In conducting herself in the manner alleged in paragraphs 11 to 13 herein, the first defendant was motivated by a purpose foreign to that for which her powers and duties had been bestowed and the alleged conduct was undertaken by her with the intention of harming the plaintiff.
15. Alternatively, the alleged conduct … was undertaken by the first defendant knowing that the conduct was beyond power and likely to harm the plaintiff.
16. Alternatively, the plaintiff says that the alleged conduct … was carried out with the intention of harming the plaintiff or with reckless indifference to the harm that was likely to ensue."
The judge at the applicant's first criminal trial was asked to discharge the jury by reason of the first respondent's behaviour. Zahra SC DCJ accepted that there had been misbehaviour amounting to improper conduct by the first respondent, but dealt with the issue by giving directions to the jury rather than ordering a discharge. The applicant pleaded the following in relation to that decision:
"19. In the course of his written reasons refusing the plaintiff's application for a discharge of the jury, Zahra DCJ found that the first defendant:
(a) Had engaged in improper conduct in that she responded to answers given by the plaintiff in cross-examination and that in doing so she intended to convey an opinion to jurors about the veracity of the plaintiff's evidence;
(b) The first defendant conveyed her opinion about the veracity of the plaintiff's evidence by shaking her head, smiling, grinning and rolling her eyes;
(c) That in engaging in the conduct referred to at (a) and (b) above, the first defendant intended to influence the jury in the assessment of the plaintiff's evidence;
(d) The first defendant attempted to influence the jury by engaging jurors by her facial expression as they entered the court room."
[7]
Primary judgment
The primary judge recorded (at [12]) that there was no controversy as to the principles that applied to an application for summary dismissal. The primary judge identified the question as being whether the claims are so obviously untenable or groundless that there is a high degree of certainty that they will fail if allowed to go to trial.
The primary judge noted (at [13]) that the applicant's case should be assessed at its highest, accepting the truth of all allegations in the statement of claim, and adopting meanings for the assertions of fact in the statement of claim of the broadest kind they were capable of bearing: Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [196]-[200].
The primary judge reminded himself (at [14]) of the need for "great care" and "exceptional caution" in order to ensure that a plaintiff is not improperly deprived of the opportunity to pursue litigation in the ordinary way: Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [24] (French CJ and Gummow J), [55] (Hayne, Crennan, Kiefel and Bell JJ); O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3] (Macfarlan JA).
The primary judge found that the tort of misfeasance in public office is concerned with misuse of public power: Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 at [37]; Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71 at [100]-[113]. Misfeasance in public office is a serious allegation and there is a need for particularity in pleading the tort: Lock v Australian Securities and Investments Commission (2016) 248 FCR 547; [2016] FCA 31 at [124]; Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32 at [60]; Leinenga v Logan City Council [2006] QSC 294 at [64].
The primary judge did not uphold the application on the basis of a lack of any pleading of loss causally linked to the first respondent's acts or omissions: at [51]-[53]. The respondent succeeded, however, in establishing that the applicant had failed to identify any public power or duty. The primary judge described (at [44]) the failure by the applicant:
"[44] … to articulate a public power that was exercised, or purportedly exercised, by [the first respondent] in conducting herself in the manner alleged."
Relevantly, his Honour found (at [28]) that:
"[28] … the plaintiff needs to establish more than just that [the first respondent] was in the court room carrying out her role as case officer at the time that she conducted herself in the manner alleged in paragraphs 11 to 13 and 19 of the Statement of Claim …"
[8]
Applicant's submissions
The applicant accepted that the primary judge correctly identified the principles governing the disposition of applications for summary dismissal. The applicant also accepted that it was necessary to establish that the alleged misfeasance involved the exercise of a public power (Obeid v Lockley at [103]) or, at the very least, was "connected to a power or function that the officer has by virtue, or as an incident, of his or her public office" (referring to Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59 at [109] per North and Rares JJ).
The applicant submitted that the prevention of crime, being a function identified by the Australian Federal Police Act, involves investigating criminal behaviour and prosecuting it, in the sense of preparing a case against an accused person and presenting that case in court. The applicant submitted that the first respondent gave evidence at the relevant trial and she was the "case officer" responsible for the investigation. The first respondent's presentation to the jury as the case officer was, in written submissions, said to bear on the characterisation of her pleaded conduct described at [9] as being the performance of a public function.
The applicant submitted that the primary judge's finding that "any person could have done" what the first respondent is alleged to have done was an error. While accepting that any person in the public gallery could have engaged in the same conduct, the applicant submitted that this did not preclude there being a connection between the alleged conduct and the powers and functions of the first respondent as a member of the Australian Federal Police, as an incident of her role as case officer. In this respect, the applicant described the first respondent as being at the "coalface" of the prosecution, having been introduced to the jury as the "case officer" and having given evidence over three separate days. Thus, it was submitted, whilst the first respondent was not the "prosecutor" in the statutory sense, she was put forward to the jury as someone instrumental in the prosecution of the applicant, and her role as "case officer" did not come to an end when she left the witness box to sit in the public gallery. The first respondent was purporting to exercise a de facto power, being a capacity to act, that was an incident of her office as an Australian Federal Police officer.
[9]
Respondents' submissions
The respondents noted that the primary judge acknowledged that "the essence of the tort ... is conduct which amounts to bad faith in the exercise of public powers" (at [21] and [44], quoting Hammerschlag J in Obeid v Ipp [2016] NSWSC 1376; (2016) 338 ALR 234 at [236]).
It was submitted that the primary judge correctly found that the statement of claim did not identify any powers or duties being invoked or purportedly exercised by the first respondent in engaging in the pleaded conduct.
In response to the applicant's submission that in engaging in the conduct the first respondent was purportedly providing "police services" pursuant to s 8(1)(b)(i) of the Australian Federal Police Act, it was submitted that, as the primary judge found at [28], the applicant needed to establish more than just that the first respondent was in the court room "carrying out her role as case officer" at the time that she conducted herself in the manner alleged. It was submitted that the primary judge's ultimate finding was correct. There was an absence of anything alleged that could establish that the first respondent's alleged misconduct was done in the exercise, or as an incident of the exercise, of any public power or duty.
[10]
Relevant principles
Although in Dunlop v Woollahra Municipal Council [1982] AC 158 at 172 Lord Diplock in the Privy Council described the tort of misfeasance in public office as "well established", Professor Aronson has pointed out that it is a tort with a relatively recent history: M Aronson, "Misfeasance in Public Office: Some Unfinished Business" (2016) 132 Law Quarterly Review 427, 428.
In Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 at 1240 Lord Bridge explained that:
" … the tort of misfeasance in public office … must … involve an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office he holds … ."
In Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ held in relation to the tort of misfeasance in public office the following (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. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton ([1897] 2 QB 57]), 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 of the tort as being concerned with the imposition of a liability on a public officer who, by use of their "position or power", causes loss to another. His Honour said (at 357):
"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."
[11]
The conclusion to be drawn in this case
The potentially relevant exercise or non-exercise of public power or duty in this case was alleged to be sourced in s 8 of the Australian Federal Police Act:
8 Functions
(1) The functions of the Australian Federal Police are:
…
(b) the provision of police services in relation to:
(i) laws of the Commonwealth;
(ii) property of the Commonwealth (including Commonwealth places) and property of authorities of the Commonwealth; and
(iii) the safeguarding of Commonwealth interests; and
(baa) the investigation of State offences that have a federal aspect; and
…
(bf) the provision of police services and police support services for the purposes of assisting, or cooperating with, an Australian or foreign:
(i) law enforcement agency; or
(ii) intelligence or security agency; or
(iii) government regulatory agency; and
…
(c) to do anything incidental or conducive to the performance of the foregoing functions.
Police services are defined in s 4 of the Australian Federal Police Act as:
"4 Interpretation
...
police services includes services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise.
The applicant disavowed any claim that the acts complained of were part of an investigation that was ongoing: "[n]o, that has not been pleaded or particularised". The applicant also disavowed a submission that the pleaded conduct amounted to the prevention of crime on the basis that if a conviction were obtained it would have a deterrent effect. The suggestion that, in engaging in the acts complained of, the first respondent was engaging in conduct being "services by way of the prevention of crime" was limited to "investigating" crime and "presenting the case in court":
"WHITE JA: [The pleaded conduct] you say is conduct which amounts to the prevention of crime, because if a conviction were obtained it would have a deterrent effect?
CANCERI: No, I say that she was providing police services which involve not only investigating, but presenting the case in Court. Police services include services to prevent crime, and my argument was that preventing crime involves investigating it and presenting a case in Court. Presenting that case in Court and prosecuting someone who is guilty of a crime has a deterrent effect."
The applicant's case was that the first respondent, in engaging in the impugned conduct, was "presenting" the case in court, despite the fact that she had given her evidence and was sitting at the relevant time in the public gallery. The public power or duty relied upon was that of a "case officer". As case officer the following functions were identified: [1]
1. being present in Court to manage prosecution witnesses;
2. speaking generally, continuing investigation of the matters alleged against an accused (noting the applicant did not rely on this function in this case);
3. providing ongoing disclosure; and
4. consulting with the Commonwealth DPP.
[12]
Conclusion and orders
For the foregoing reasons I propose the following orders:
1. Grant leave to appeal;
2. Appeal dismissed against the second respondent with costs;
3. Appeal allowed against the first and third respondents;
4. Set aside orders 1 and 2 made by the primary judge on 3 July 2019 and in lieu thereof make the following orders:
1. Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), summarily dismiss the proceedings against the second respondent;
2. Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), summarily dismiss the proceedings against the first and third respondents insofar as they allege malicious prosecution;
3. Otherwise dismiss the respondents' notice of motion filed on 11 February 2019;
1. Order that the first and third respondents pay the appellant's costs of the application for leave to appeal and the appeal;
2. Remit the question of costs of the hearing of the respondents' notice of motion filed on 11 February 2019 to the Common Law Division.
WHITE JA: In Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 French CJ and Gummow J said (at [25]):
"Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success."
The same principle applies to the present application for summary dismissal.
In Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 Kirby P said (at 5-6):
"Common experience teaches that it is usually more efficient and just to consider the viability of a cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence. Testimony gives colour and content to the application and development of legal principle. That is why leave is usually required for an appeal from interlocutory orders. Appellate courts, including this Court, will usually require evidence to be adduced and a trial concluded before considering the application of the law to that evidence. Out of the detail of the evidence ultimately proved, affecting the relationship of the respondent and the appellant, may arise a finding of a duty of care which the common law of negligence would uphold".
[13]
Endnote
These functions were set out in a letter from the applicant's solicitors responding to the second request for particulars sent by the respondents. That letter states that these were the functions of the first respondent as "Officer in Charge" in respect of the investigation. This term was intended to have the same meaning as "case officer".
[14]
Amendments
13 November 2020 - Amendments made to [132], [139], [148], [155]
13 November 2020 - Updated references and short titles of cases [19], [33], [48], [49]
Corrected typographical errors [33], [53]
16 November 2020 - Cosmetic amendments.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 16 November 2020
The applicant's claim is not hopeless and to summarily dismiss the claim would be inconsistent with the possible development of the law: [57].
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, applied.
Per White JA:
Caution should be exercised in utilising summary processes when there is a question of legal principle, unless the law is so clearly settled that it would be futile to allow an action to proceed: [64]-[67], [129].
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28; Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272; Wickstead v Browne (1993) 179 CLR 688 (note); (1993) 10 Leg Rep SL 2, applied.
There is a distinction between a de facto power incident to a public office and a power conferred on the holder of the public office: [71]-[75].
Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64, distinguished. Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65; Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59, discussed and applied.
The first respondent's alleged misbehaviour was arguably the exercise of a de facto power, that is, a capacity she had, by virtue of her office, to influence the jury by her reactions to submissions and evidence: [76], [127].
Calveley and Ors v Chief Constable of the Merseyside Police [1989] AC 1228, distinguished. Leerdam v Noori [2009] NSWCA 90 (Spigelman CJ); Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65; Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59 (North and Rares JJ); Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71 (Bathurst CJ), considered.
The resolution of these issues should not be dealt with on an application for summary dismissal: [129].
Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272, applied.
Per Simpson AJA:
In Mengel Deane J identified as the fourth element of the tort that the act is done in purported discharge of his or her public duty: [137].
Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65, applied.
For Deane J's fourth element to be satisfied, the public officer must be exercising, or purporting to exercise, a power conferred or discharging a duty: [140].
There is sufficient evidence, however, to indicate that the inquiry may be not so confined. The terminology used in other cases is capable of indicating a broader approach than one limited to whether the acts intended to constitute misfeasance were acts done in the exercise of public power or the discharge of public duties. This language includes "authorities", "abuse of office", and "functions": [140]-[141].
Calveley and Ors v Chief Constable of the Merseyside Police [1989] AC 1228; Farrington v Thomson & Bridgland [1959] VR 286; Leerdam v Noori [2009] NSWCA 90, discussed.
It may be unduly narrow to focus on a "power" said to have been exercised (or not exercised) by a person found to be a public officer, and the focus should be more broadly on the "office" by which the public officer in question is given authority or apparent authority: [145].
There is sufficient doubt about what is encompassed in the terminology of Deane J's fourth element to warrant the applicant's claim going to a hearing: [147].
On 16 August 2018, the respondents sought better particulars in relation to, relevantly, paragraphs [14] and [15] of the statement of claim as to the powers or duties allegedly being invoked or exercised by the first respondent when the alleged conduct occurred. On 10 October 2018, the applicant replied that, in relation to both paragraphs [14] and [15]:
"The powers and duties inherent in the office held by the first defendant, as pleaded at paragraph 4 of the Statement of Claim."
Paragraph [4] of the statement of claim pleaded:
"At all material times, the first defendant was the officer in charge of an investigation against the plaintiff for alleged offences under the [relevant legislation]."
On 31 October 2018, the respondents sought further particulars concerning, relevantly, paragraphs [11]-[15] and [19] of the statement of claim:
"(a) Please provide particulars of the specific public powers or public duties, inherent in the public office held by the first defendant, that the plaintiff alleges were being invoked or exercised by the first defendant by the conduct pleaded in paragraphs 11-13 and 19 of the Statement of Claim.
(b) In relation to paragraph 14 of the Statement of Claim, please provide further and better particulars of the powers and duties it is said were bestowed upon the first defendant and particulars of the invalid or unauthorised act that is claimed to have been motivated by the pleaded purpose.
(c) In relation to paragraph 15 of the Statement of Claim, please provide further and better particulars of the specific power referred to therein and particulars of the invalid or unauthorised act that is claimed to have been done with the pleaded knowledge."
On 4 January 2019, in answer to the request set out immediately above, the applicant responded:
"(a) Paragraph 4 of the Statement of Claim clearly pleads that the First Defendant was the Officer in Charge in respect of the investigation of the criminal matters as alleged against the Plaintiff. Further, the Plaintiff says the First Defendant was a 'Prosecutor' for the purposes of the tort of malicious prosecution.
(b) The First Defendant's role as Officer in Charge included being present in Court to manage prosecution witnesses, continue investigation of the matters alleged against the Plaintiff, provide ongoing disclosure and consultation with the CDPP."
On 8 February 2019, the respondents filed a defence. On 11 February 2019, a notice of motion seeking summary dismissal or an order striking-out the statement of claim was filed.
His Honour noted (at [45]) that the applicant "sought to go further in his written submissions in response to the present application" and asserted that the first respondent was fulfilling a function of the Australian Federal Police of providing "police services" in relation to laws of the Commonwealth, relevantly, s 8(1)(b)(i) of the Australian Federal Police Act 1979 (Cth):
"[45] … 'Police services' is defined in s 4(1) to include 'prevention of crime'. The plaintiff submitted that prevention of crime involves investigating criminal behaviour and prosecuting it. Prosecuting a person for criminal activity involves preparing a case against the person and presenting that case in court. So, it was submitted, [the first respondent] was 'intimately involved in the investigation of the plaintiff and the presentation of the case against him in court'." (Footnote omitted.)
The primary judge described the contention that the first respondent was performing a prosecuting function as part of the provision of "police services" in preventing crime, as "tenuous" and as ignoring "the fact that police officers are not authorised to prosecute crime" (at [48]). His Honour found there was an absence of any identification of a connection between the alleged conduct and the first respondent carrying out a role of managing prosecution witnesses, continuing investigations, or providing ongoing disclosure and consultation with prosecution lawyers.
His Honour concluded that the claim was "hopeless and is doomed to fail" (at [50]), noting at [49] that:
"[49] Any person could have done what [the first respondent] is alleged to have done, whether or not they were the repository of a public power or bound by a public duty. The asserted misbehaviour was, at most, temporally coincidental to, but had no direct or incidental relationship with, the performance of [the first respondent's] powers and duties as a police officer."
As noted above, the primary judge then went on to address the pleaded claim for malicious prosecution and leave to appeal is not sought from that part of his Honour's judgment. The primary judge made orders at [106] that:
"1. Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are summarily dismissed.
2. The Plaintiff is to pay the Defendants' costs of this application and of the proceedings."
Deane J (at 370) identified the elements of the tort as being "(i) an invalid or unauthorised 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 formulation rather emphasises "the purported discharge of his or her public duties" rather than a purported exercise of "power".
In Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 at [37] Gleeson CJ, Gaudron, Kirby and Hayne JJ emphasised that the tort is concerned with the misuse of public power. Their Honours said:
"[37] Questions of holding public officials liable for acts done apparently in furtherance of their duty raise very different considerations from those that may arise in relation to economic torts committed by private persons. Misfeasance in public office is concerned with misuse of public power."
It is correct, as White JA points out in his judgment in the present case, that the plurality in Sanders v Snell were not in this passage addressing potential differences in the formulation of this element of the tort between a purported exercise of "power", "authority", "public duties", "functions of office" or "a de facto power, being a capacity to act, that was an incident of the public office".
In Cannon v Tahche (2002) 5 VR 317; [2002] VSCA 84 the Victorian Court of Appeal explained (at [28]) that whilst the precise limits of the tort remain undefined:
"[28] 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' … ". (Footnote omitted.)
In Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, Lord Steyn said (at 190) 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 the ingredients of the tort. Relevantly, his Lordship identified the first two distinct elements as being (at 191):
1. the defendant must be a public officer; and
2. the impugned conduct must be the exercise or the purported exercise of power as a public officer.
It appears that subsequent decisions of the Court of Appeal of England and Wales (set out by White JA) appear to have proceeded on a wider basis, at least in the application of the tort to the conduct of police officers.
In Leerdam v Noori [2009] NSWCA 90 Spigelman CJ at [5]-[7] explained that the identification of a power to act, which has or has not been exercised, is a necessary step in determining whether the conduct complained of occurred in purported performance of the functions of a public office. In the present case, however, it was accepted that the first respondent was a public officer. The complete passage in which the Chief Justice explained this requirement should be set out in full:
"[5] As Macfarlan JA shows, the joint judgment of the Victorian Court of Appeal in Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 does suggest that the identification of a relevant power attached to a public office is an 'essential element of the tort'. (See e.g. at [53] and [61].) Nevertheless, their Honours also discuss, without criticism, other cases which indicate that the existence of a public duty, and other incidents of a particular office, may appropriately be considered. (See e.g. at [50]-[52].)
[6] I do not understand their Honours to lay down a test of universal application for determining when a position is a public office for purposes of the tort. The identification of a power to act, which has or has not been exercised, is a necessary step in determining whether the conduct complained of occurred in purported performance of the functions of a public office. The relevant consideration is the link."
Spigelman CJ then quoted with approval the passage from Calveley quoted at [33] above.
To the same effect, Allsop P held at [48]:
"…The Victorian Court of Appeal in Cannon v Tahche at 336-339 discussed the criteria for determining public office in the context of the tort. At 338-339, the Court said that the notion of the carrying out of a public duty may not be an appropriate guide in every case. What was essential, however, was the existence of a relevant power attached to the office. In that case, though a public prosecutor could be said to owe duties to the public, the prosecutor's 'duty of disclosure [did] 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'. This was a duty owed to the Court as a discretionary responsibility not one enforceable at the instance of the accused: Cannon v Tahche at 339."
The reference by Spigelman CJ at [5] to Macfarlan JA's adoption of the Victorian Court of Appeal's remarks was a reference to Macfarlan JA's judgment at [100]-[102]:
"[100] In Cannon v Tahche the Victorian Court of Appeal carefully analysed the authorities as to the nature and elements of the tort. There is no need for me to repeat that analysis as (subject to what I say in [114-116] below) I agree with it and with the conclusions arrived at. In particular, I agree with the Court's primary ground of decision that an office cannot be characterised as a public office for the purposes of the tort if no relevant power is attached to it ([49]-[53], [61]).
[101] One of the defendants in that case was a barrister who had appeared as prosecutor at the trial of the plaintiff for rape. The plaintiff was convicted but his conviction was later quashed. He complained of the manner in which the prosecution had been conducted and alleged that the prosecutor and his instructing solicitor had committed the tort of misfeasance in public office by withholding from him evidence that the complainant had fabricated her allegations.
[102] The Court took the view that 'the position of prosecutor did not have, as an incident of it, any relevant power' (at [61]). In conducting the trial the prosecutor did not exercise any relevant power but rather performed a function of the office of Director of Public Prosecutions, 'that being to represent the Crown at a criminal trial' (at [61]). Accordingly the Court concluded that the prosecutor could not 'be regarded as having held a public office during the plaintiff's trial' (at [72]). The Court found that the case before it was indistinguishable from that before the Victorian Full Court in Tampion v Anderson (1973) VR 715. In that case it was held that counsel assisting a board of inquiry concerning Scientology did 'not hold a public office in the relevant sense, and […] had no statutory powers with respect to the inquiry' (at 722)."
In Obeid v Lockley Bathurst CJ quoted as properly setting out the law the passage in the judgment of Spigelman CJ in Leerdam v Noori set out at [42]. Bathurst CJ explained why the identification of a public power was a necessary and separate element of the tort:
"[100] … As Allsop P said in Leerdam at [48], the question must be considered in the context of the tort, which, in my opinion, is designed to provide redress for acts done by public officers in abuse or misuse of powers conferred on them for the purpose of their public duties.
...
[102] … in Sanders v Snell (No 2) (2003) 130 FCR 149; [2003] FCAFC 150 at [89], the Full Court of the Federal Court of Australia stated that the 'essence of the tort' was as described by Slade LJ in Jones v Swansea City Council [1990] 1 WLR 54 at 71:
'… someone holding public office has misconducted himself [or herself] by purporting to exercise powers which were conferred on him [or her] not for his [or her] personal advantage but for the benefit of the public or a section of the public, either with intent to injure another or in the knowledge that he [or she] was acting ultra vires.'
[103] This review of the Australian authorities demonstrates two matters. First, the tortfeasor must be a 'holder of a public office'. Second, the act complained of must be the exercise of a public power. However, the cases provide no clear statement of what constitutes the 'holding of a public office', or whether the power exercised has to be 'attached' to the public office, or whether it is sufficient that the public officer by virtue of their position is entitled or empowered to perform the public acts in question. However, in my view, the power does not have to be expressly attached to the office."
Bathurst CJ also quoted with approval the formulation of the test by the House of Lords in Calveley. Bathurst CJ at [108] said:
"[108] In Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 (Calveley), which was a claim against a police constable for misfeasance in public office, Lord Bridge, with whom the other members of the House of Lords agreed, stated at 1240 that the tort 'must at least involve an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office he holds'. The claim in Calveley failed because the pleaded case did not identify an act done by the constable 'in the exercise or purported exercise of a power or authority vested in him'."
In Obeid v Lockley, Leeming JA explained at [225] that "[n]otoriously, the elements of the tort of misfeasance in public office were, and are, unsettled". That conclusion has a particular resonance in this case.
Nyoni (North and Rares JJ, Dowsett J dissenting), which was much relied upon by the applicant, is a case which warrants analysis. The majority, North and Rares JJ, explained at [81] the elements of the tort as including the use or purported use of a public "power" as being the essence of the tort:
"[81] It is of the essence of misfeasance in public office that the officer either maliciously (with the intention of injuring the plaintiff) uses his, her or its power or, alternatively, knowingly acts in excess of that power." (Emphasis added.)
Having set out the test by reference to a purported use of "power", the majority in Nyoni then went on to decide that the public "power" identified in that case was the purported use of the "authority" of the Shire to make an official complaint to two regulatory bodies: at [107]. The making of the complaint was held to be a misuse of the "power" of the office: at [113]. No statutory or common law power to make a complaint was said to be engaged. That is, the Full Court determined that it was sufficient to meet the description of a purported exercise of "power" that the holder of a public office should exercise a de facto power, being a capacity to act, that was an incident of the public office.
The identification of a capacity to act, that was an incident of a public office, as being an exercise or purported exercise of "power" seems to me to be an extension of the previously understood outer limits of the tort of misfeasance in public office, at least in Australia. The Council in making the complaint was not exercising or purporting to exercise any public power. At most, the making of the complaint in the letters to the relevant regulators, on the letterhead of the Council, was a purported exercise of a function of the Council officers, as an incident of their employment with the Council. Special leave to appeal from the decision was refused: Shire of Kellerberrin v Nyoni [2018] HCATrans 27.
The functions of a "case officer" which are relied upon by the applicant here are not "powers" or "duties" in the sense of statutory or common law powers or duties. The conduct of the first respondent was not an exercise of public power in the sense of a purported exercise of a statutory or common law power or duty. It may be that some of the functions of a case officer may lead to the purported exercise of a public power, in the sense of a statutory or common law power or duty. For example, "continuing investigation" (when conducted) may involve the exercise of statutory or common law powers of search or detention.
I had originally thought that in the present case, that conclusion provided a sufficient basis to dismiss the application for leave to appeal. Having considered the judgment of White JA in draft, however, I have decided that the applicant's argument is not hopeless, and that to summarily dismiss the claim would be inconsistent with the possible development of the law explained in the passage from Spencer v Commonwealth extracted by his Honour. That is, it is arguable that in acting as she did, the first respondent was purporting to exercise a "power" in the sense of a de facto power, being a capacity to act, that was an incident of her office as an Australian Federal Police officer. That capacity to act as "case officer" was, in that sense, capable of giving rise to a purported use of public power, at least in the sense that element was satisfied in Nyoni.
Having said that, and in fairness to the primary judge, I do not think that the argument which emerged on appeal was squarely raised by the pleadings and particulars. Nor was it squarely put to his Honour. That, of itself, is not fatal. The argument having now emerged, the applicant should be given the opportunity of conducting that case. As French CJ and Gummow J said in Spencer v Commonwealth:
"[23] Accepting that there are a number of ways in which s 31A may be applied to empower the Federal Court to dismiss a proceeding, it is to be distinguished, in its application to deficient pleadings, from rules (such as O 11 r 16 of the Federal Court Rules) which provide for the striking out of pleadings. As Lindgren J said in White Industries Aust Ltd v Federal Commissioner of Taxation [(2007) 160 FCR 298 at 309 [47]]:
'evidence may disclose that a person has or may have a "reasonable cause of action" or "reasonable prospects of success", yet the person's pleading does not disclose this. In such a case O 11, r 16 empowers the Court to strike out the pleading but … s 31A(2) would not empower the Court to give judgment for the respondent against the applicant. A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts.'"
Whether it is necessary for the applicant to replead the case to conform with the way it is now put will be a matter for the Common Law Division on remitter.
Whilst I harbour a doubt about the correctness of the majority's decision in Nyoni, it was not submitted for the purposes of this application that Nyoni was incorrectly decided. Nor was it submitted that Nyoni was inconsistent with High Court authority. I accept the force in White JA's conclusion that the applicant's case is not necessarily doomed to fail. An application for leave to appeal from the grant of an order for summary dismissal is not the place to determine weighty questions about the as yet undefined limits of the tort of misfeasance in public office.
It follows that I would grant leave to appeal and allow the appeal against the first and third respondents limited to the question of misfeasance in public office. As explained at the outset, no appeal was brought regarding the summary dismissal of the malicious prosecution claim, which was brought against all three respondents. It was common ground that the appeal should be dismissed as against the second respondent. The first and third respondents must pay the applicant's costs of this application for leave to appeal and the appeal.
Given that the respondents were successful below in relation to the malicious prosecution pleading but have now failed in relation to misfeasance in public office, some apportionment of costs of the summary dismissal motion is appropriate. Given that this Court is not in the best position to determine how those costs should be apportioned, and the matter is to be remitted, I would also remit the question of costs of that application to the Common Law Division.
Kirby P was in dissent but his judgment was upheld by the High Court when it granted special leave to appeal and immediately allowed the appeal: (1993) 10 Leg Rep SL 2.
The applicant's pleading of the alleged misbehaviour of the first respondent is quoted by Payne JA at [9]. The primary judge held and the respondent submits that the pleading and particulars provided did not identify any public power or duty being invoked or exercised by the first respondent: at [41]. His Honour said (at [44]) that the applicant had failed to articulate a public power that was exercised or purportedly exercised by the first respondent in conducting herself in the manner alleged.
The primary judge found (at [49]) (in the passage quoted by Payne JA at [24] above) that:
"The asserted misbehaviour was, at most, temporally coincidental to, but had no direct or incidental relationship with, the performance of Ms Diaconu's powers and duties as a police officer".
This application does not raise the question whether the first respondent was a public officer, as distinct, perhaps, from a public employee: Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71 at [208]-[210] (Leeming JA). Rather, it was accepted that the first respondent held a public office for the purpose of the tort, but it was said that it was not reasonably arguable that her impugned conduct was the exercise of any public power.
The applicant argued before the primary judge that the first respondent was fulfilling a statutory function of the Australian Federal Police of providing "police services" in relation to the laws of the Commonwealth: Australian Federal Police Act 1979 (Cth).
I agree with Payne JA and the primary judge that it is not reasonably arguable that the first respondent, in misbehaving as she is alleged to have done as the instructing case officer in court, exercised any power conferred on her by statute as a federal police officer.
But the applicant's complaint is that, albeit unlawfully, the applicant, by virtue of her office as the case officer, had and exercised a de facto power to influence the jury by her misbehaviour in court. It is arguable that the first respondent was performing her duties as a public officer in attending court as the instructing case officer and misperformed those duties by her alleged behaviour in court. The question raised by the application is whether the elements of the tort of misfeasance in public office are so settled that the claim should be summarily dismissed because the first respondent was not exercising any statutory or prerogative power, or, it may be taken, any other power conferred on her by her office, except the authority to act as the case officer instructing the Crown's solicitor and counsel at the appellant's trial.
There are distinctions between powers, duties and functions. There is also a distinction between the power of a public officer in the sense of an authority conferred on him or her, such as the power given to the Minister for Tourism of Norfolk Island to give directions to the Norfolk Island Government Tourist Bureau that was in issue in Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64, and a de facto power that comes with the public office that is not derived from the conferral of lawful authority on the public officer, such as was exercised by the Northern Territory inspectors in Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65. There, the majority observed (at 328):
"It is now clear that there was no statutory or other authority for the acts of the Inspectors notwithstanding that they were furthering the aims of the government-sponsored campaign to eradicate bovine brucellosis and tuberculosis (the campaign)."
In Mengel the inspectors were purporting to exercise a statutory power. It is counterintuitive to think that if a purported exercise of statutory power could satisfy the first requirement of the tort of misfeasance in public office, a misuse of public office through the exercise of a de facto power, that is, a capacity to act, that came with the office, but was never conferred, would not satisfy the first requirement of the tort.
In the present case the respondent's alleged misbehaviour in court was not done in the exercise of any authority conferred on her, but was arguably the exercise of a de facto power, that is, a capacity she had, by virtue of her office, to influence the jury by her reactions to submissions and evidence.
The phrase "public power" used in the cases is not a defined term. It is sometimes used in the sense of an authority conferred by statute or prerogative on the holder of the office. But it is also sometimes used in the sense of a de facto power, unsupported by lawful authority, that the holder of the office has by virtue of his or her position. It was in that sense that in Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59 North and Rares JJ said (at [118]) that Messrs Mitchell and Friend were exercising a public power.
In Mengel, the Mengels' claim for damages for the tort of misfeasance in public office did not fail because the inspectors were not exercising a particular power conferred on them, but because they were not motivated with the intention of inflicting harm and did not know that their actions were beyond power. The Mengels' argument that it was sufficient that the inspectors ought to have known that they lacked power was rejected: at 347. Only Brennan and Deane JJ addressed the question of whether the tort is confined to the exercise of "public power" by the public officer. Their Honours' formulation of the tort, although different, does not support such a limitation. Brennan J said (at 355):
"Less clearly established are the principles which define the liability imposed on a public officer who by use of his position or power, causes loss to another." (Emphasis added)
In a footnote accompanying this Brennan J said:
"cf Calveley v Chief Constable of Merseyside [1989] AC 1228 at 1240: 'an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office he holds.'"
The "cf", that is, "compare", is significant. Brennan J contemplated that the misuse of either position or power by a public officer could found the tort if other elements were established.
Brennan J also said (at 355):
"The tort is not limited to an abuse of office by exercise of a statutory power. ... 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." (Emphasis added)
This makes the above point clear.
Brennan J cited Henly v Mayor of Lyme (1828) 5 Bing 91 at 107-108; 130 ER 995 at 1001 where Best CJ said:
"It seems to me that all these cases establish the principle, that if a man takes a reward, - whatever be the nature of that reward, whether it be in money from the crown, whether it be in land from the crown, whether it be in lands or money from any individual, - for the discharge of a public duty, that instant he becomes a public officer; and if by any act of negligence or any act of abuse in his office, any individual sustains an injury, that individual is entitled to redress in a civil action."
Brennan J also said (at 357):
"It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. 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. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office."
Having regard to the entirety of Brennan J's reasons, his Honour's statement that "misfeasance in public office consists of a purported exercise of some power or authority by a public officer" cannot be read merely as a reference to a purported exercise of some statutory or prerogative power conferred on the officeholder, as distinct from its including a de facto power that the officeholder has by virtue of his or her office.
Deane J summarised the elements of the tort not in terms of the public officer exercising a power, but exercising a public duty. His Honour said (at 370):
"Its elements are: (i) an invalid or unauthorised 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."
In Sanders v Snell the majority said (at [39]) that "... misfeasance in public office is concerned with performance of public duties ..." Their Honours also said in a passage quoted by Payne JA (at [37]) that "[m]isfeasance in public office is concerned with misuse of public power", whilst accepting "that the tort ... extends to acts by public officers that are beyond power, including acts that are invalid for want of procedural fairness" (at [38]).
In Sanders v Snell there was no question but that the Minister was purporting to exercise a specific statutory power. His exercise of the power was invalid for denial of procedural fairness. The question of what may or may not constitute an exercise of public power did not arise. The majority observed (at [42]) that the precise limits of the tort were still undefined.
There is no binding authority of the High Court on the issue presently raised. The caution of French CJ and Gummow J in Spencer v Commonwealth quoted above applies, unless the law is so clearly settled that it would be futile to allow the action to proceed.
The early formulations of the tort were widely expressed. I have extracted above the passage from the reasons of Best CJ in Henly v Mayor of Lyme quoted by Brennan J in Mengel. In Farrington v Thomson and Bridgland [1959] VR 286 Smith J said (at 293), of the tort called "misfeasance in a public office":
"That an action on the case lay for such a misfeasance was established at a relatively early period. In Comyns' Digest, tit. 'Action on the Case for Misfeasance (A1)', there is the statement: 'an action on the case lies for misfeasance; as, if an officer misdemean himself by any falsity...or otherwise misbehave himself in his office'. In the same work, tit. 'Action on the Case for a Deceit (A6)', it is stated that such an action will be 'if an officer, being entrusted by the law, act deceptive in his office'. In Bacon's Abridgment, 'Offices and Officers (N)', it is said that all officers, whether such by the common law or made pursuant to statute, are punishable for oppressive proceedings by an action at the suit of the party injured. Then in Whitelegg v Richards (1823) 2 B & C 45, at p. 52, it is stated that an action on the case may be maintained against any officer of a court 'for a falsity or misconduct in his office, whereby a party sustains a special damage'."
In England, Calveley v Chief Constable of Merseyside [1989] AC 1288 has not been held to exclude all claims where the police officer has abused his office otherwise than through the exercise of a power or authority conferred on the police officer.
In Elliott v Chief Constable of Wiltshire [1996] TLR 693 a journalist who was investigating alleged misconduct on the part of a senior police officer brought an action for the tort of misfeasance in public office when a senior police officer (it was not known whether it was the same police officer the subject of the journalist's investigation) told the plaintiff's news editor that the plaintiff was a criminal with a long string of convictions and supplied a list of those convictions. The list included offences of which the journalist had not been convicted, but also offences of which he had been convicted. It was not disputed that the information as to those convictions had been derived from the Police National Computer and that disclosure of those convictions by the police for an improper purpose was an offence. In seeking to strike out the statement of claim the defendant (the Chief Constable, said to be vicariously liable) argued that the tort of misfeasance in public office concerned the purported exercise of some power or authority and that the malicious provision of information to the news editor, whether true or false, could not be said to have been the exercise of a power or authority.
Sir Richard Scott VC refused to strike out the statement of claim. His Lordship's reasons are quoted in the later decision of Waller and Laws LJJ in Cornelius v Hackney London Borough Council [2003] LGR 178; [2002] EWCA Civ 1073 at [16]:
"16. However, in Peter Elliott v Chief Constable of Wiltshire Constabulary (the Times 5 December 1998) but of which we have a transcript dated 20 November 1996, the Vice-Chancellor Sir Richard Scott had to consider the question whether to strike out a statement of claim based upon alleged misfeasance by a police officer in his public office. The allegation against the police officer was that he had deliberately and falsely supplied details of convictions to the press. The point taken in that case was that it was not concerned with a police officer 'purporting to exercise any relevant power' and on that basis it was suggested that the pleading should be struck out. The Vice-Chancellor however had the case of Calveley and the dictum of Lord Bridge cited to him, but said as follows:
'I would agree that the tort of misfeasance in public office does require that the misconduct complained of should be sufficiently connected with the public office that has allegedly been abused. A police officer may, out of hours and not in uniform, commit an assault. In doing so, he does not abuse his office as a police officer, notwithstanding that he will of course be liable for damages for assault and may have committed a criminal offence. On the other hand, a police officer who, as a police officer, effects an arrest but does so unlawfully, either without reasonable cause or with excessive violence, and with a malicious motive - for example, with the intention of revenging himself against an individual against whom he has a grudge - does, I would have thought, clearly abuse his office. Both cases involve unlawful assault, but the latter involves also, as the former does not, an abuse of office.
I have taken the example of assault for the purpose of making the point which I think underlies Mr Rubin's submissions. The distinction is no different if the injury caused by the conduct complained of is economic, as in the present case, rather than physical, as in my examples. Nor, in my view, does it matter whether the conduct complained of is physical or consists, as it does in the present case, of the giving of information. In either case there must, in my view, be a connection between the misconduct complained of and the office of which the misconduct is an alleged abuse. I express no view as to whether a mere omission could ever suffice.
In the present case, on the pleadings, there is, in my opinion, the requisite connection. The senior police officer, who provided the information to the news editor, was, it is to be inferred, in possession of the information about the convictions, or at least that part of the information that was true, because he was a police officer. The inference is that either he, or some subordinate acting on his instructions, had obtained information about the plaintiff from the National Police Computer. So the police officer came into possession of that information in his capacity as, and because of his office of, police officer. Second, the senior police officer in giving the information to the news editor was purporting to act in his capacity as a police officer. That that is so is to be inferred from paragraph 9 of the statement of claim. It appears from paragraph 9 that the individual identified himself to the news editor as a senior police officer. Among other things, he said to the news editor, "We do not want him down here." "We", in that context, must have meant the police. He said that if there were a robbery or rape, the police would "pull in" the plaintiff for questioning. That, too, is an indication that the individual, in supplying the information to the news editor, was speaking as a police officer.
Police officers have a status at common law, and perhaps at statute as well, which is both a privilege and the source of powers and duties. If in the apparent performance of functions pertaining to their office police officers commit misconduct, then if the other ingredients of the tort of misfeasance in public office, and in particular the requisite intention to injure and resulting damage, are present the tort of misfeasance in public office is, in my opinion, made out.'"
The pleading in Cornelius v Hackney London Borough Council raised a similar issue. Waller LJ with whom Laws LJ agreed, said (at [17]):
"In that reasoning of the Vice-Chancellor I suggest a distinction is being drawn between a public officer exercising a power and a public officer abusing his position as a public officer. Thus, although I accept that what is alleged in the draft statement of claim quoted above could not be said to be an allegation relating to the exercise of a power, that is not as I see it, an answer to Mr Cornelius' case. The draft as it seems to me does allege that the Chief Executive and other councillors were abusing their position as public officers. That seems to me to raise three questions. First, whether the position of Chief Executive of the defendant council and/or the position of any other members of the defendant council is such a public office that liability for its abuse could give rise to a claim by someone in Mr Cornelius' position. The answer to that question seems to me to be clear that they could."
In neither case was the pleading struck out, even though it did not allege a wrongful exercise of "public power".
Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122; [2001] UKHL 29 concerned the availability of exemplary damages. The police constable's liability for the tort of misfeasance in public office was accepted. That was noteworthy because the allegation was that having assured the plaintiff whose property had been stolen that the matter would be investigated, the constable forged the plaintiff's signature on a statement purporting to withdraw the complaint. That was an abuse of position but not the exercise of a "public power". Because liability was conceded the present question did not arise. But the fact that liability was conceded indicates that in England Calveley is not regarded as having concluded that the tort of misfeasance in public office is necessarily confined to abuse of a power conferred on the public officer as distinct from an abuse of position.
Rees v Commissioner of Police for the Metropolis [2017] EWHC 273 concerned a claim for misfeasance in public office where a police officer investigating a murder improperly procured a potentially unreliable witness to implicate persons who were later accused of the murder and then concealed the fact that he had done so from the Crown Prosecuting Service and prosecuting counsel in a way which tended to pervert the course of justice (at [186]-[187]). Mitting J cited the observations of Lord Steyn in Three Rivers District Council v Governor and Company of the Bank of England (No. 3) [2003] 2 AC 1 at 191-194 that:
(a) the defendant must be a public officer;
(b) there must be an exercise of power as a public officer;
(c) the defendant must have the requisite state of mind; and
(d) the act or omission of the public officer must cause loss to the claimant.
His Lordship continued:
"[181] Mr Johnson QC submits that, whatever Cook may have done, he was not exercising a public power, such as a constable's common law and statutory power of arrest or search. He relies on the observations of Lord Bridge in Calveley v Chief Constable of the Merseyside Police [1989] 1 AC 1228 at 1240D and 1240H - 1241B. The Chief Constable had applied to strike out a claim brought by a police officer subject to disciplinary proceedings about a report made by another police officer to his superior about his conduct which he claimed was false. The pleaded case was mostly about negligence, but there was also a residual claim for damages for misfeasance in public office. Lord Bridge said that he did not regard it as the occasion to attempt to define the precise limits of the tort of misfeasance in public office.
'It suffices for present purposes to say that it must at least involve an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office he holds….'
He said that it was evident that a false report to a senior officer for the purpose of disciplinary proceedings which was defamatory of the subject of the report was actionable, but not for misfeasance in public office,
'But the tort is defamation not misfeasance in public office, since the mere making of a report is not a relevant exercise of power or authority by the investigating officer.'
[182] I do not accept Mr Johnson's submission, for three reasons.
i) Neither Lord Steyn's formulation, nor that of Lord Bridge, confined the second requirement of the tort to the exercise of a common law or statutory power. Lord Bridge used the words 'some power or authority with which he is clothed by virtue of the office he holds'. Lord Steyn gave as an example of the exercise of power as a public officer, 'the exercise of public functions' by the banking supervision department. A police officer is given authority to investigate by his chief constable; and it is one of the functions of an investigative police officer to investigate crimes and obtain witness statements for the purpose of criminal prosecutions.
ii) Case law establishes that misconduct in the performance of police functions is sufficient to found the tort. In Cornelius v London Borough of Hackney [2002] EWCA Civ 1073, Waller LJ cited with approval the unreported judgment of the Vice Chancellor in Peter Elliot v Chief Constable of Wiltshire Constabulary 20 November 1996, in which the point had been taken that when a police officer supplied details of convictions to the press, he did not do so, purporting to exercise a relevant public power. He held that the facts alleged would give rise to a claim.
'Police officers have a status at common law, and perhaps statute as well, which is both a privilege and a source of powers and duties. If in the apparent performance of functions pertaining to their office police officers commit misconduct, then if the other ingredients of the tort of misfeasance in public office, and in particular the requisite intention to injure and resulting damage, are present the tort of misfeasance in public office is, in my opinion, made out.'
In Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435, the issue was the scope of the immunity, if any, available to those investigating alleged crimes. The allegations were manifold and included several which were not concerned with the exercise by police of statutory or common law powers. The plaintiffs sued for damages for conspiracy to injure and misfeasance in public office. Lord Hope observed at p446F
'The claims are based on allegations about things done by the police while they were engaged in the investigation of crime and during the process of preparing the case for the trial. If the allegations are true, the police would, but for the immunity, be liable to the plaintiffs in damages.'
Darker was heard on 15 and 16 May 2000. Judgment was handed down on 27 July 2000. Lord Hope had been part of the panel hearing Three Rivers, in which judgment was handed down on 18 May 2000. He would hardly have expressed himself as he did in Darker if he had had any doubt about the availability of a claim for damages for misfeasance in public office.
iii) If Mr Johnson's proposition is correct, it would create unjustified anomalies, of which one illustration will suffice. If a police officer, in the exercise of a statutory power of entry and search of the home of an alleged burglar, plants an item stolen in the course of a burglary in the person's home, he has committed an act of misfeasance in public office, because he has done it in the exercise of a power. If he says that he saw the alleged burglar running down the street and dropped the item and he claims, falsely, to have picked it up, he would not be liable, because he would not have been exercising any police power. There is a limit on the tolerance of the law to anomaly and this would cross it."
In Rees v Commissioner of Police for the Metropolis the claims of two plaintiffs failed at first instance for failing to establish that loss had been caused by the tortious conduct. On appeal (Rees v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587 the Court of Appeal held that the appellants had established, on the facts found by the judge, that they had suffered loss as a result of the torts for which they sued: at [102]. The primary judge's reasoning as to why the tort of misfeasance in public office had been established does not appear to have been challenged.
In Garrett v Attorney-General [1997] 2 NZLR 332 the applicant claimed damages for the tort of misfeasance in public office, complaining that a sergeant of police, to whom she had complained that she had been raped by a police constable, failed properly to investigate and deal with her complaint. She complained of a breach of police regulations which required the taking of due and prompt measures for the investigation of complaints and the prompt reporting of accidents, offences or unusual occurrences: at 340. Her claim failed, but not on the ground that the sergeant was not exercising a public power or authority. Blanchard J, giving the reasons of a five-member Court of Appeal, said (at 344):
"Proceedings for the tort of misfeasance in public office, also known as abuse of public office, have never been common. Early in its development an essential ingredient was malice on the part of the defendant: a deliberate and vindictive act by a public official involving a breach of duty and directed towards the plaintiff. This has come to be known as 'targeted malice'. But the tort is no longer so confined. It can also be committed by an official who acts or omits to act in breach of duty knowing about the breach and also knowing harm or loss is thereby likely to be occasioned to the plaintiff. As will appear from the following discussion, 'knowing' in relation to both the breach and its effect on the plaintiff includes acting recklessly, in the sense of believing or suspecting the position and going ahead anyway without ascertaining the position as a reasonable and honest person would do." (Emphasis added)
In Odhavji Estate v Woodhouse [2003] 3 SCR 263; [2003] SCC 69, the Supreme Court of Canada refused to strike out a statement of claim that alleged that police officers committed the tort of misfeasance in public office by refusing to co-operate (in breach of their statutory obligation to co-operate) with an investigation into the death of Mr Manish Odhavji after he was fatally shot by police officers. After referring to other Canadian cases, to Brennan J's reasons in Mengel, to Garrett v Attorney-General and the House of Lords judgment in Three Rivers District Council v Bank of England (No 3) (which concerned an omission to act) Iacobucci J, giving the judgment of the court, said:
"21 ...In Australia, New Zealand and the United Kingdom, it is equally clear that the tort of misfeasance is not limited to the unlawful exercise of a statutory or prerogative power actually held.
22 What then are the essential ingredients of the tort, at least insofar as it is necessary to determine the issues that arise on the pleadings in this case? In Three Rivers, the House of Lords held that the tort of misfeasance in a public office can arise in one of two ways, what I shall call Category A and Category B. Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff. This understanding of the tort has been endorsed by a number of Canadian courts: see for example Powder Mountain Resorts, supra; Alberta (Minister of Public Works, Supply and Services) (C.A.), supra; and Granite Power Corp. v. Ontario, [2002] O.J. No. 2188 (QL) (S.C.J.). It is important, however, to recall that the two categories merely represent two different ways in which a public officer can commit the tort; in each instance, the plaintiff must prove each of the tort's constituent elements. It is thus necessary to consider the elements that are common to each form of the tort.
23 In my view, there are two such elements. First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. What distinguishes one form of misfeasance in a public office from the other is the manner in which the plaintiff proves each ingredient of the tort. In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff.
24 Insofar as the nature of the misconduct is concerned, the essential question to be determined is not whether the officer has unlawfully exercised a power actually possessed, but whether the alleged misconduct is deliberate and unlawful. As Lord Hobhouse wrote in Three Rivers, supra, at p. 1269:
The relevant act (or omission, in the sense described) must be unlawful. This may arise from a straightforward breach of the relevant statutory provisions or from acting in excess of the powers granted or for an improper purpose.
Lord Millett reached a similar conclusion, namely, that a failure to act can amount to misfeasance in a public office, but only in those circumstances in which the public officer is under a legal obligation to act. Lord Hobhouse stated the principle in the following terms, at p. 1269: 'If there is a legal duty to act and the decision not to act amounts to an unlawful breach of that legal duty, the omission can amount to misfeasance [in a public office].' See also R. v. Dytham, [1979] Q.B. 722 (C.A.). So, in the United Kingdom, a failure to act can constitute misfeasance in a public office, but only if the failure to act constitutes a deliberate breach of official duty."
In Cannon v Tahche (2002) 5 VR 317; [2002] VSCA 84 the plaintiff had been convicted of rape, but his conviction was quashed on appeal after fresh evidence emerged that the complainant had made a similar complaint against another man that she acknowledged was false. The plaintiff, who had served a term of imprisonment, commenced proceedings for damages against eight defendants, including a barrister who appeared as prosecutor at the trial and a solicitor who was his instructor. He sued them for the tort of misfeasance in public office. The Court of Appeal of Victoria held that neither the barrister nor the solicitor was a public officer for the purposes of the tort. The court said (at [40]):
"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."
In Sanders v Snell (No 2) (2003) 130 FCR 149; [2003] FCAFC 150, the Full Court of the Federal Court (Black CJ, French and Von Doussa JJ) said that "... the essence of the tort in each of its forms is the 'dishonest abuse of power'": at [108]. But that was in the context where the tort alleged involved an abuse of statutory power. The present issue did not arise.
Cannon v Tahche was applied by this court in Leerdam v Noori [2009] NSWCA 90 in similar circumstances. In Leerdam v Noori an applicant for a protection visa had his application rejected, but succeeded on an appeal to the Full Federal Court in establishing the decision had been made in denial of procedural fairness. He was released from detention. He commenced proceedings against both the Minister and the Minister's solicitor (Mr Leerdam) contending that he would not have been subjected to detention for five years between 2001 (when his application was heard before the Administrative Appeals Tribunal) and 2006 (when he was eventually given a protection visa) if he had not been denied information about allegations on the basis of which he was refused a protection visa.
Macfarlan JA held that there was a need to differentiate between offices and other employment and referred to the article of PD Finn "Public officers: Some personal liabilities" (1977) 51 Australian Law Journal 313 that the distinction between offices and other employment (at [108]):
"excludes from the ambit of public office law those persons who may be regarded as discharging public duties because they happen to be involved in contracting with a government or with a governmental public authority".
Macfarlan JA observed that if the tort were not limited to the abuse of public powers and authorities its scope would be excessively wide: at [109]. Cannon v Tahche was applied in holding that the Minister's solicitor was not a public officer for the purposes of the tort.
Macfarlan JA also said:
"103 That the tort is concerned with the misuse of public powers or authorities is evident from the decision of the High Court in Northern Territory v Mengel. The plurality judgment in that case speaks repeatedly in these terms (at 345-8). Likewise Brennan J in that case said that:
'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' (at 357).
104 Similarly in Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329, the plurality judgment described the tort of misfeasance in public office as being 'concerned with misuse of public power'. Further, in Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 Lord Steyn described the second ingredient of the tort as being a requirement that there be an exercise of power as a public officer (at 191) and Lord Hobhouse spoke of the tort being concerned with 'governmental authority and the exercise of executive powers' (at 229; see also Society of Lloyd's v Henderson and others (2007) EWCA Civ 930 at [23]; (2008) WLR 1 at [23]).
105 The fact that the Courts have at times referred in the context of this tort to 'public duties' is not inconsistent with the proposition that the tort is concerned with the abuse of public powers or authorities. As was pointed out in Cannon v Tahche, persons entitled to exercise public powers or authorities will almost invariably have a duty to exercise them in order to fulfil the requirements of their office (at [52]). Thus there was no inconsistency in the plurality judgment in Sanders v Snell referring at one point to misfeasance in public office as being 'concerned with misuse of public power' at [37]) and at another to it being concerned with 'performance of public duties' (at [345]). The latter is a natural concomitant of the former. The references to 'public duties' do not require the conclusion that, for the tort to be applicable, it is enough to point to the existence of a public duty, unassociated with the exercise of a public power or authority.
106 Mr Noori pleaded in [19A] of the FASC (quoted in [94] above) that Mr Leerdam (and therefore also Sparke Helmore) had exercised 'a power of a public nature' in three identified respects. These each related to the actions of the appellants as solicitors in the conduct of the proceedings before the AAT. Whilst in one sense it might be said that the appellants had 'powers' to determine what 'evidence, materials and particulars' would be communicated to Mr Noori and what steps would be taken to fulfil directions and orders of the AAT, these were in reality simply discretionary means of performing the functions which Sparke Helmore's contract with the Minister obliged the firm to perform, namely to 'represent' the Minister at the hearing (compare Cannon at [61], referred to at [37] above). There was no power or authority conferred by statute or by the common law which the appellants exercised."
However, Spigelman CJ envisaged a wider scope for the tort.
Spigelman CJ said (at [4]-[8], [25]):
"4 Where there is any doubt about whether a particular person occupies a 'public office' for purpose of the tort, it will ordinarily be enough to approach the matter on the basis that the tort is 'concerned with' the 'misuse' or 'abuse' of public power (Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 at [37]) or that the tort is 'concerned with performance of public duties' (Sanders v Snell at [39]). There is no relevant difference, as these citations from the joint judgment in Sanders v Snell indicate, between authorities which use the language of 'duty' and those which use the language of 'power'. The formulation 'abuses his office' is to be found in the foundational authority Henly v Mayor and Burgesses of Lyme (1828) 5 Bing 91 at 107; (1828) 130 ER 995 at 1001.
5 As Macfarlan JA shows, the joint judgment of the Victorian Court of Appeal in Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 does suggest that the identification of a relevant power attached to a public office is an 'essential element of the tort'. (See eg at [53] and [61].) Nevertheless, their Honours also discuss, without criticism, other cases which indicate that the existence of a public duty, and other incidents of a particular office, may appropriately be considered. (See eg at [50]-[52].)
6 I do not understand their Honours to lay down a test of universal application for determining when a position is a public office for purposes of the tort. The identification of a power to act, which has or has not been exercised, is a necessary step in determining whether the conduct complained of occurred in purported performance of the functions of a public office. The relevant consideration is the link.
7 As Lord Bridge put it in Calveley v Chief Constable of Merseyside [1989] AC 1228 at 1240:
… the tort of misfeasance in public office … must … involve an act done in the exercise or purported exercise by the police officer of some power or authority with which he is clothed by virtue of the office he holds …
8 Furthermore, as the Full Federal Court put it: 'the impugned act must have involved the exercise of power as a public officer.' (Emphasis added: Sanders v Snell (No 2) [2003] FCAFC 150; (2003) 130 FCR 149 at 172 per Black CJ, French and Von Doussa JJ.)
...
25 In any event, it is not appropriate to describe the duties of a solicitor representing a party as 'public duties' for the purpose of characterisation of the position held by the solicitor as a 'public office'. Similarly, the existence of a power, albeit not an express power but a power in the sense of a capacity to act, relevantly with respect to the answer for the particulars etc, does not involve a public power or capacity or authority of any character capable of characterising the position of the person as a 'public office'."
Spigelman CJ here appears to accept (at [4]-[5]) that a breach of "public duties" by a public officer, which is an abuse of public office, may satisfy the first element of the tort where the officer breaches his or her public duty by wrongly exercising a power, in the sense of a capacity to act. The conferral of public powers on the officer will be at least relevant and may be determinative in an assessment of whether he or she occupies a public office. His Honour's statement at [6] of the need for the plaintiff to show that the impugned conduct occurred in the purported functions of a public office and his reference at [25] to power in the sense of capacity to act must inform the reading of [7] and [8] of his judgment.
Allsop P agreed generally with Macfarlan JA and said (at [50]):
"It is clear that the tort is concerned with the exercise of governmental or executive power vested in a person with a power or duty to exercise it."
His Honour had previously said (at [48]):
"Some authorities place emphasis on there being an office, the holder of which owes duties to members of the public as to how the office shall be exercised: see Tampion v Anderson at 720; and Henderson v McCafferty [2002] 1 Qd R 170 at 176-177 (Williams J). Other cases emphasise a functional approach by performance of a public duty or power: Henly v Mayor and Burgesses of Lyme (1828) 5 Bing 91; 130 ER 995; R v Bowden [1996] 1 WLR 98 at 100-103."
Allsop P's reasons were directed to explaining his conclusion that the solicitors for the Minister were not exercising a public office, rather than to the distinction between the exercise by a public officer of functions, duties, capacities and powers.
Many of these cases and others were considered by Peter Lyons J in Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth of Australia [2015] QSC 175 where his Honour granted the plaintiff leave to amend to plead the tort of misfeasance in public office against an officer of the Australian Competition and Consumer Commission who recommended to the Minister that the plaintiff's tooth whitening product be compulsorily recalled. His Honour considered cases up to and including Leerdam v Noori and said (at [62]) that he could not safely conclude that the claim must fail because the plaintiff did not allege conduct of the relevant defendant which amounted to a purported exercise of a power. Pro Teeth Whitening was referred to by the Queensland Court of Appeal in Petersen v Nolan [2020] QCA 56 with neither approval nor disapproval.
In Obeid v Lockley Bathurst CJ said:
"[103] This review of the Australian authorities demonstrates two matters. First, the tortfeasor must be a 'holder of a public office'. Second, the act complained of must be the exercise of a public power. However, the cases provide no clear statement of what constitutes the 'holding of a public office', or whether the power exercised has to be 'attached' to the public office, or whether it is sufficient that the public officer by virtue of their position is entitled or empowered to perform the public acts in question. However, in my view, the power does not have to be expressly attached to the office.
...
[114] In these circumstances, it seems to me that a 'public officer' would at least include persons who, by virtue of the particular positions they hold, are entitled to exercise executive powers in the public interest. If such an entitlement is conferred on them and they misuse the power, they may have committed the tort and be liable for damage which results from their conduct.
[115] In the present case, the primary judge concluded at [310] that the respondents, in executing the warrant, were not exercising a power 'which they had from any official position to which continuing functions or duties were assigned'. While I accept that this approach derives significant support from the judgment of Macfarlan JA in Leerdam and the decision of the Victorian Court of Appeal in Cannon, for the reasons I have given, I do not think that the tort is so narrowly confined."
I do not read Bathurst CJ's reasons as negating the reasonable arguability of the proposition that if the requisite intent were established the first respondent's alleged conduct could amount to the commission of the tort of misfeasance in public office because she was exercising a capacity or de facto power (an executive power) derived from her office.
The reasons of the primary judge take the reference to powers conferred on the first respondent to mean the statutory powers conferred on her, and not any functions that attach to her position. In a formal sense, the first respondent was not exercising any power when, having given her evidence, she was present in court instructing the solicitor and counsel prosecuting the applicant. However, but for her public office, she would not have been in the position (the applicant alleges) to have influenced the jury in the way he alleges the jury was influenced. The applicant contends that the first respondent had a power to influence the jury, that she only had because of her office, and was derived from her office. Had she not been the case officer she would not, after having given evidence, have been sitting immediately behind the solicitor instructing prosecuting counsel, in the eyeline of the jury, and there have been able (as it is alleged) to influence the jury by her reactions to the plaintiff's evidence and the plaintiff's counsel's address to the jury.
In Nyoni the appellant operated a pharmacy in a town in Western Australia. He brought a claim against the shire and its chief executive officer (Mr Friend) and its president (Mr McDonald) for the tort of misfeasance in public office as a result of the disconnection of the electricity supply to the pharmacy: at [1]-[2]. Mr Friend assisted in the taking of steps to have the applicant's power supply disconnected with the view to persuading a regulator to act so that the applicant would be required to cease operating his pharmacy: at [57], [75]. North and Rares JJ said (at [75]):
"... The harm that Mr Friend sought to bring about, using his position as chief executive officer of the Shire in an official email from him in that office, was to give the Department and the Pharmaceutical Council a basis to act against Mr Nyoni to undermine his ability to act as a professional, licensed and qualified pharmacist at the pharmacy."
The harm that Mr Friend sought to bring about, and did bring about, was the result of the misuse of his office and not as the result of any particular public power conferred on him as chief executive officer of the shire. It was nonetheless effective.
North and Rares JJ said:
"[103] The next question is whether in sending his email of 14 October 2010, and causing Mr Mitchell's letter to be sent, to the Department and the Pharmaceutical Council, Mr Friend acted in exercise or purported exercise of a power of his public office. It is inherent in the performance of the most senior executive office of a governmental institution, such as a Department of State or a local government council, that the office-holder must make representations and communications on behalf, or as the voice, of that institution to others, including other organs of government responsible for exercising functions or powers that affect the office-holder's employer.
...
[109] The tort of misfeasance in public office involves a misuse of the power of the office. The officer must either intend that misuse to cause harm (whether or not the exercise of the power is within its scope) or know that he or she is acting in excess of his or her power: Mengel at 345. That is, depending on the officer's state of mind in exercising the power, the misuse can be one that would be within the power (i.e. a use that, if coupled with an intention to use it that was not to cause harm, would be lawful) or in excess of the power (i.e. a use for which, in essence, there is no power because the officer knows that the act is beyond - in excess of - the power). Nonetheless, it is necessary to establish that the alleged misfeasance is connected to a power or function that the officer has by virtue, or as an incident, of his or her public office."
North and Rares JJ concluded:
"118 In our opinion, based on the primary judge's findings of fact, Mr Friend committed the tort of misfeasance in public office in acting as he did on 14 and 15 October 2010 by sending his email and assisting Mr Mitchell to produce and despatch his letter to convey that Mr Nyoni was at fault for the pharmacy's disconnection. In so acting Mr Friend was also acting as the Shire so as to make it also liable for misfeasance in public office: Dunlop [1982] AC at 172F-G; Hamilton at 127-129. Their intention, of injuring Mr Nyoni in doing so, entailed that their exercise of a public power was done for an ulterior and an improper purpose and, so, was a misuse of their powers: Futuris at [11]. It was targeted malice."
In Petersen v Nolan Mullins JA said (at [14]) that in Nyoni the impugned communications were to regulatory authorities about the only pharmacy operating in the shire that was an essential service for the shire and were about matters that directly affected the shire, and thus constituted the exercise of power in public office. This is true. Nonetheless, the power in question in Nyoni was a de facto power, that is, a capacity to act, that was an incident of Mr Friend's office as chief executive officer that enabled him to influence other regulatory authorities. It was the wrongful use of his position that caused the plaintiff's loss. This is within the scope of the tort as described by Brennan J in Mengel at 355 (quoted at [78] above).
Dowsett J dissented on the ground that it did not appear that Mr Friend's conduct occurred in the performance of his function as a chief executive officer of the shire council. This was because it was not demonstrated that it was any part of the shire council's function to safeguard the availability of pharmaceutical services in the area in question: at [164].
The High Court refused special leave to appeal.
In Grass v Slattery [2018] FCA 1719, the respondents were Commonwealth public servants. They were sued for the tort of misfeasance in public office because an applicant for Australian citizenship, whose application was initially approved, was later denied approval for citizenship on the basis of false or misleading information provided in her application. Bromwich J held that whilst there was no authoritative statement of a test for determining what constitutes a public office for the purpose of the tort, it is essential to identify a relevant power attached to the public office (citing Cannon v Tahche and Leerdam v Noori): at [158].
Bromwich J found that none of the allegations of abuse of public office had been established. His Honour's findings did not depend upon a distinction between the exercise of public power and abuse of public office.
There is a distinction between a de facto power incident to a public office and a power conferred on the holder of the public office. The conferral of public powers on a person is the hallmark of that person holding public office. Arguably, it is not necessary that the powers, whose conferral makes the defendant the holder of public office, must necessarily be the powers abused to ground the first requirement of the tort. It is arguable that the abuse of de facto powers, that is, the capacity to act, derived from the conferral of powers that make the office a public office, are within the scope of the tort. That is the same as abuse of position. It is arguable that merely because the power (capacity) to influence the jury is not the power that would make the first respondent a public officer, does not mean that that power does not have the mantel of public power when it is exercised by a public officer whose conferred powers to provide police services are the reason for its existence.
Calveley and some authorities in Australia that have applied Calveley referred to in the reasons of Payne JA, suggest that the tort of misfeasance in public office does not extend so far. But there are other judgments, including those of Brennan and Deane JJ in Mengel, North and Rares JJ in Nyoni and perhaps Spigelman CJ in Leerdam v Noori, and Bathurst CJ in Obeid v Lockley, and judgments in England decided after both Calveley and Three Rivers District Council v Bank of England (No 3), as well as decisions in New Zealand and Canada, that suggest otherwise.
The resolution of these issues should not be dealt with on an application for summary dismissal. This court has not had the benefit of a full citation of authority. Nor did the primary judge have that benefit. As Kirby P said in Wickstead v Browne it is usually better to assess the viability of a cause of action when the facts have been adduced and the action can be judged with a full understanding of all relevant evidence which gives colour and content to the development of legal principle.
I agree with the orders proposed by Payne JA.
SIMPSON AJA: The issue in this application may be stated as whether the applicant has any reasonable prospect of establishing the tort of misfeasance in public office. R A Hulme J held that the Statement of Claim disclosed no reasonable cause of action and, therefore, exercising the power conferred by Uniform Civil Procedure Rules (2005) NSW r 13.4(1)(b), summarily dismissed the proceedings: Ea v Diaconu [2019] NSWSC 795.
In reaching that decision R A Hulme J had regard to authority to the effect that, in summary dismissal applications, the enquiry may not be confined to what is expressly pleaded, but may extend to whether there may be discerned "an reasonable cause of action": Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [23], citing White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511 at [47].
The applicant seeks leave to appeal against R A Hulme J's decision.
The relevant facts are stated in the judgment of Payne JA, which I have had the advantage of reading in draft. The following assumes familiarity with the facts stated by his Honour. I have also had the advantage of reading in draft the judgment of White JA. In both judgments there is extensive reference to all relevant authorities.
The application calls, first, for consideration of what constitutes the tort of misfeasance in public office. It may be noted at the outset that, although the tort has been described as "well-established" (Dunlop v Woollahra Municipal Council [1982] AC 158 at 172; Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 345; [1995] HCA 65), its limits have been described as "undefined" (Mengel at 345, Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 at [42]) and "unsettled" (Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71 at [225] per Leeming JA). In Sanders v Snell the majority (Gleeson CJ, Gaudron, Kirby and Hayne JJ) drew attention to the competing considerations to be balanced in the determination of allegations of misfeasance in public office. Their Honours said:
"37. … Inappropriate imposition of liability on public officials may deter officials from exercising powers conferred on them when their exercise would be for the public good. But too narrow a definition of the ambit of liability may leave persons affected by an abuse of power uncompensated."
In Obeid, at [225] Leeming JA spoke of "the incremental traditions of the common law".
The elements of the tort were most clearly spelled out in the judgment of Deane J in Mengel (at 370) as:
(i) invalid or unauthorised acts;
(ii) done maliciously;
(iii) by a public officer;
(iv) in purported discharge of his/her public duty;
(v) which causes loss or harm to the plaintiff.
It is the fourth of Deane J's elements to which this application directs attention. It is not in issue (for present purposes) that the first respondent (the first defendant, Ms Diaconu) was a public officer (the third element). Nor (for present purposes) was it in issue that the conduct alleged against her, if proven, was either invalid or unauthorised (or both) and done maliciously (the first and second elements) and likely to cause harm to the applicant (the fifth element). (An issue was raised in the proceedings at first instance concerning whether loss could be established but R A Hulme J did not decide the proceedings on that basis).
The terminology used in relation to the fourth of Deane J's elements has varied from case to case. The terminology includes:
"act of abuse in his office" (Henley v Mayor and Burgesses of Lyme (1828), 5 Bing 91);
"a breach of his official duty", "abuse of his office"; (Farrington v Thomson and Bridgland [1959] VR 286 at 293);
"a discharge of his public duties" (Dunlop at 172);
"an act done in the exercise or purported exercise by the public officer of some power or authority"; (Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 at 1240);
"functions of the office", "use of position or power", "abuse of office", "perform the functions of a public office" (Mengel, per Brennan J at 355-357);
"purported exercise of official authority" or "public duties" (Mengel, per Deane J at 364, 370)
"acts done apparently in furtherance of their duty" (Sanders at [37]);
"abuse by the holder of a public office of a public power or one which must be exercised for the public good" (Cannon v Tahche (2002) 5 VR 317; [2002] VSCA 84 at [28], [40]);
"the exercise or purported exercise of power as a public officer": (Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1);
"power attached to public office", "public duty"; "purported performance of the functions of a public officer" (Leerdam v Noori [2009] NSWCA 90; (2009) 227 FLR 210 at [5], [6], [48]);
"bad faith in the exercise of public powers": (Obeid v Ipp [2016] NSWSC 1376; (2016) 338 ALR 234 at [236]);
"abuse or misuse of power conferred on [public officers] for the purpose of their public duties (Obeid v Lockley at [100], per Bathurst CJ).
As will be apparent from the above catalogue the preponderance of authority lies with the notion that, for the fourth element of the tort to be satisfied, the public officer must be exercising, or purporting to exercise, a power conferred or discharging a duty. There is sufficient, however, to indicate that the inquiry may be not so confined. In Leerdam (at [4]) Spigelman CJ considered that there is no relevant difference denoted by the use of "power" and "duty". That observation, however, was made in the context of the issues in that case, which was concerned with whether solicitors who had been engaged to represent a Commonwealth Minister were "public officers". (They were not. The question of "what was encompassed in" the exercise of public powers or the discharge of public duties therefore did not arise).
The terminology used in other cases is capable of indicating a broader approach than one limited to whether the acts intended to constitute misfeasance were acts done in the exercise of public power or the discharge of public duties. This language includes "authority" (Calveley and Mengel), "abuse of office" (Farrington and Mengel) and "functions" (Leerdam and Mengel).
In Farrington at 293 Smith J referred to ancient authority (Comyns' Digest) and quoted:
"… an action on the case lies for misfeasance; as, if an officer misdemean himself by any falsity … or otherwise misbehave himself in his office."
His Honour then concluded:
"… 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 against at the suit of that person."
Farrington was described by the plurality in Mengel (at 345) as "one of the seminal cases on misfeasance in public office", and as "the first important Australian decision" in Three Rivers (at 30), although their Honours in Mengel noted that there was no indication of what was comprehended in the expression "an abuse of his office".
Farrington is one of relatively few cases in which a plaintiff claiming damages for the tort of misfeasance in public office has succeeded. In that case two police officers purported to exercise power that, Smith J found, they knew they did not possess, and ordered him to shut down his hotel business.
In the light of the varying terminology used, it may be unduly narrow to focus on a "power" said to have been exercised (or not exercised) by a person found to be a public officer, and alleged to have been guilty of misfeasance in that office, and the focus should be more broadly on the "office" by which the public officer in question is given authority or apparent authority.
This is consistent with the recognition by the majority in Sanders that a balance needs to be struck to ensure that appropriate cases secure redress, and inappropriate cases do not. This may be a difficult balance to achieve, even in a final hearing, but more particularly so in an application for summary disposal.
The authorities to date have not elucidated the boundaries of Deane J's fourth element of the tort. At least, there is sufficient doubt about what is encompassed in the terminology to warrant the applicant's claim going to a hearing.
There remains a question whether the applicant's pleading adequately discloses the case he seeks to make. In White Industries Lindgren J said (at [47]):
"A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts." (italics added)
From the beginning those representing the applicant have struggled to identify the basis on which they propose to establish the fourth element of the tort.
In his statement of claim the applicant pleaded that Ms Diaconu, in conducting herself as alleged, was "motivated by purposes foreign to that for which her powers and duties had been bestowed" and acted as she did "with the intention of harming the plaintiff" (para 14), in the knowledge that the conduct was "beyond power and likely to harm the plaintiff". (para 15)
These were pleadings referable to Deane's J second element, and touched, (if at all) only lightly on the fourth element. They were directed to Ms Diaconu's motivation.
Solicitors for the respondent sought particulars of the "powers and duties" on which the applicant relied, but were referred only to para 4 of the Statement of Claim, which pleaded:
"At all material times, the first defendant was the officer in charge of an investigation against the plaintiff for alleged offences under the Criminal Code Act 1995 (Cth) ('the Criminal Code') and the Migration Act 1958 (Cth) ('the Migration Act')."
This response was hardly informative. A second request fared no better, the response being that the applicant had "no further particulars to provide at this stage".
In argument the applicant relied on statutory functions of officers of the Australian Federal Police stated in the Australian Federal Police Act 1979 (Cth) ("the AFP Act"). Those provisions are fully set out in the judgment of Payne JA.
It is difficult to conclude that, in conducting herself as it was alleged that she did, Ms Diaconu was exercising any power or performing any function of an officer of the Australian Federal Police ("AFP"). Indeed, it is a reasonable inference that, if proved, her conduct was misconduct, and outside the authority given to her. That identifies something of a paradox in the analysis of the tort. Axiomatically, conduct that constitutes misfeasance is conduct that lies outside any power or authority conferred. That is why, in some of the decisions, reference is made to the "purported exercise" of powers, functions or performance of duties.
Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59 is another of the remarkably few cases of alleged misfeasance in public office that have succeeded. The facts in Nyoni do not readily emerge either from the judgment of the Full Court or the court at first instance (Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294). However, it appears that the allegation of misfeasance in public office (which was, by majority, upheld in the Full Court of the Federal Court) was that two officers of the Shire of Kellerberrin took action to have electricity supplied to a pharmacy operated by Mr Nyoni disconnected. Mr Nyoni's claim was that this action was beyond power and designed to cause him harm.
Although there appears to have been no specific power being exercised, or duty discharged, North and Rares JJ accepted that such conduct constituted misfeasance in public office. An application by the Shire of Kellerberrin for special leave to appeal to the High Court was refused on the ground that the judgment "is not attended by sufficient doubt to warrant the grant of special leave to appeal": Shire of Kellerberrin v Nyoni [2018] HCA Trans 27 (16 February 2018).
The question for present determination is whether, contrary to the reasoning of R A Hulme J, Ms Diaconu's alleged conduct, if proved, is capable of coming within Deane J's fourth element.
The evidence showed that Ms Diaconu was the "case officer" in the prosecution of the applicant and that she was present at court in that capacity, having given her evidence. The applicant did not point to any specific "power" that she was then exercising, nor any duty that she was discharging. Nor could any specific statutory function stated in the AFP Act be identified. It would be unreal, however, to ignore that Ms Diaconu was performing functions of an AFP officer or, at least, (all that is necessary for present purposes) that it may reasonably be found that she was doing so.
I agree with the submission that it is not to the point that any other person could have acted as Ms Diaconu is alleged to have acted. What is alleged against her is that she engaged in that conduct while she was performing her functions as case officer in the prosecution of the applicant. That (potentially at least) gave her a special status in the court, a status which, on the applicant's case, she abused or misused.
None of the cases to which this Court was referred specifically addressed the parameters of the fourth of Deane J's elements of the tort. Leerdam and Cannon were concerned with whether the defendants were "public officers"; Mengel was concerned with whether the officers in question were motivated by the necessary malice or ill-will. Sanders was concerned with whether the intermediate appellate court had erred in finding error in the decision at first instance, and, whether denial of procedural fairness was required in the decision concerned. None has established, or attempted to establish, the boundaries of the fourth of Deane J's elements.
Although the outcomes in the cases referred to above show that plaintiffs face a significant hurdle in having claims of misfeasance in public office accepted, some courts have also been reluctant to exercise the power of summary dismissal; see, for example Odhavji Estate v Woodhouse [2003] 3 SCR 263; [2003] SCC 69, of which relevant extracts appear in the judgment of White JA. The Supreme Court of Canada allowed an appeal against an order striking out a claim for misfeasance in public office on the ground that the pleading disclosed no reasonable course of action, holding that that action should be allowed to proceed.
The claim in Ashley v Chief Constable of Sussex Police [2007] 1 WLR 398; [2006] EWCA Civ 1085, (like the claim in Odhavji), arose out of a police shooting. The claim for misfeasance in public office concerned a press release issued following the shooting, and a subsequent press conference, that contained information said to have been inaccurate that, it was alleged, prejudiced a criminal investigation and caused psychological injury. At first instance the pleading was summarily dismissed. The principal issue to which attention was directed appears to have been the state of mind of the police officers involved.
The Court of Appeal allowed an appeal against a ruling summarily dismissing the misfeasance in public office claim (at [152]). On a further appeal to the House of Lords that ruling was not challenged: Ashley v Chief Constable of Sussex Police [2008] AC 962.
Notwithstanding the inadequacies of the applicant's pleading, and his failure to articulate clearly the basis for his claim, the authorities of which mention has been made (and additional authorities referred to in the judgment of White JA) in my opinion the somewhat blurry boundaries of the tort leave open the possibility that the applicant will be able to establish relevant misconduct within the parameters of Deane J's fourth element. For these reasons, I agree that the order for summary dismissal should be set aside.