HER HONOUR: By notice of motion filed 7 September 2018, the defendant seeks an order dismissing the proceedings under r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), or alternatively, an order striking out the whole or part of the statement of claim under r 14.28 of the UCPR. The plaintiff opposes the orders sought.
[2]
Overview
The plaintiff is Joseph Golden. The defendant is the Commonwealth Minister for Agriculture and Water Resources. He has held that appointment since 20 December 2017 (Ex 1). The Department has previously been known as the Department of Agriculture Fisheries and Forestry. His predecessors (also mentioned in the pleading) include Mr Tony Burke, Mr Joe Ludwig and Mr Barnaby Joyce. A large number of paragraphs of the statement of claim are devoted to alleged conduct of Mr Peter V'landys, who is the Chief Executive of Racing NSW.
The plaintiff has been involved in the horse breeding and racing industries. He is an accountant and has worked in computer programming. He filed the statement of claim in these current proceedings on 30 July 2018.
Broadly speaking, the statement of claim appears to address three topics arising out of the 2007 Commercial Horse Assistance Payments Scheme ("CHAPS"). The first is the alleged maladministration of CHAPS by Racing NSW. CHAPS is a scheme established in 2007 by the Commonwealth Government to provide financial assistance to eligible recipients for the welfare and ongoing training of horses affected by the outbreak of equine influenza. The CHAPS scheme was meant to be limited to race horses in work, and does not extend to horses spelling. According to the plaintiff, this condition has not been adhered to. Since 2008, the plaintiff has been attempting to get the public moneys of, he says, $250,000,000 expended, reimbursed. It is clear that the plaintiff feels strongly about this issue, as he has held up a placard outside his local member's office that reads "Racing NSW corrupt CEO robs taxpayers." He has also held up this placard on the Grafton Bridge. He also seeks $5,000,000, including exemplary damages.
In these proceedings, the plaintiff alleges that CHAPS has been deliberately mismanaged by Racing NSW. Paragraph 2 of the statement of claim refers to Racing NSW, which appears to denote the body corporate established under s 4(1) of the Thoroughbred Racing Act 1996 (NSW). The functions of Racing NSW are set out in s 13 of that Act and include the control, supervision and regulation of horse racing in NSW. The allegations made by the plaintiff include: the use of "flawed horse records"; a Racing NSW media release sending a coded message to horse trainers about "how to steal CHAPS"; and a trainer, engaged by the plaintiff to train one of his horses, fraudulently applying for a CHAPS payment in respect of horses that were spelling, rather than in work.
The second topic of complaint is that various public authorities and individuals have responded inadequately to the plaintiff's allegations concerning CHAPS. These individuals include Mr V'landys and other officials from Racing NSW, NSW racing stewards, NSW police officers, members of NSW Parliament, former premiers of NSW, the current NSW Premier, Federal members of Parliament, the Commonwealth Ombudsman, former holders of Mr Littleproud's portfolio and former Prime Ministers of Australia. The allegations against many of these authorities and individuals extend to claims of "covering up" the alleged fraud relating to CHAPS. Although the specifics of all of the correspondence are not entirely clear from the pleadings, the plaintiff appears to have been making these allegations since around 2008.
The third topic that the plaintiff has re-canvassed concerns certain decisions made by Mr V'landys in 2011, which were the subject of judgment in the New South Wales Supreme Court in Golden v V'landys [2015] NSWSC 1709 ("the 2015 proceedings"), and the Court of Appeal in Golden v V'landys [2016] NSWCA 300 ("the 2016 proceedings") (Ex 2).
[3]
The law - strike out and summary judgment
UCPR 13.4(1) provides that the court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are if the proceedings are frivolous or vexatious, if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the court.
UCPR 14.28(1) provides that the court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings; or thirdly, is otherwise an abuse of the process of the court.
UCPR 14.28(2) provides that the court may receive evidence on the hearing of an application for an order under subrule (1).
In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 the Court of Appeal applied the High Court decision of Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 ("Spencer"). In Spencer, the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth), but the following principles are of general application:
1. On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]).
2. The critical question can be expressed as whether there is more than a "fanciful" prospect of success (per French CJ and Gummow J at [25]), or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54]). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success.
3. Powers to summarily terminate proceedings must be exercised with exceptional caution (at [55]; see also French CJ and Gummow J at [24]).
[4]
Embarrassment
A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him: see Gunns Ltd v Marr [2005] VSC 251 at [14]-[15]; Hannon v Afro Pacific Capital Limited [2005] NSWSC 564, at [13]; McGuirk v University of New South Wales [2009] NSWSC 1424 ("McGuirk") at [30]. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action, and ought be struck out: see McGuirk at [35].
In Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393, Tamberlin J considered the meaning of the word "embarrassment" in the context of Order 11 Rule 16 of the Federal Court Rules, which substantially mirrors UCPR 14.28. His Honour said at [18]:
"Embarrassment" in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Limited (1995) ATPR 41-434. An example of an embarrassing pleading is where the pleading simply pleads a conclusion.
The remarks of Tamberlin J were quoted with approval by Black J in Frazer v SR7 Pty Limited [2013] NSWSC 820, in the context of applying UCPR 14.28.
I will refer to the tort of abuse of process later in this judgment.
[5]
The function of pleadings
The main function of pleadings is to state, with sufficient clarity, the case that has to be met by the defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness, that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287 and 302-3. For a fuller explanation, see McGuirk at [21] to [35].
[6]
The plaintiff's pleadings in the statement of claim
I must confess I had difficulty in comprehending the case that the plaintiff is propounding, and in particular the causes of action he wishes to articulate. At the outset, I asked the plaintiff to outline the causes of action he alleges against the defendant. The allegations made are of a most serious kind. The plaintiff emphasised a wide-ranging fraud. He complained about the fact that he had never been able to present his case before the Court, and "prove" the embezzlement of public funds. He also seeks to allege wide-ranging misfeasance and misconduct in public office.
[7]
The pleading of fraud
UCPR 15.3 refers to the pleading of fraud. It reads:
"15.3 Allegations of behaviour in the nature of fraud
(cf SCR Part 16, rule 2; DCR Part 9, rule 20)
A pleading must give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which the party relies."
From what I understand, the alleged involvement of the defendant comes about because on 10 February 2018, the plaintiff forwarded a letter of demand by email to the defendant, requesting $1,460,000 in damages resulting from 2008 "DAFT Tony Burke negligence payable in 14 days" (Ex A, Tab 36).
[8]
The claims for relief
In paragraph 1, the plaintiff seeks the following relief:
"A declaration that David Littleproud [DL] Minister for Agriculture and Water Resources [Minister of Parliament - MP], Federal Member for Maranoa failed to acknowledge or recover public funds embezzled, fraud facilitated & covered up by the former Ministers of Department of Agriculture, Fishery & Forests [DAFF] with the appointment of [DAFF] Agent Racing NSW [DAR] in his decision of about 7 June 2018 to inform the plaintiff Mr Golden, that plaintiff [Mr Golden] had not provided sufficient evidence [to DL] of reported widespread fraud in DAFF Ministry 7 MP's for DL to respond to, in that: ..."
In subparagraphs (a) to (e) which follow, the plaintiff makes allegations against a number of former ministers, including Peter McGauran, Tony Burke, Joe Ludwig and Barnaby Joyce.
In subparagraph (f), the plaintiff refers again to the defendant and states that:
"Mr Golden reported all of the above to DAFF DL who must now compensate Mr Golden's losses that resulted in Mr Golden's business destruction by DAR"
In subparagraph (g), the plaintiff claims that "DAFF & DAR failed in their duty of care to all Australians", and in subparagraph (h), asserts that "DAR & DAFF mismanagement protected one another".
In paragraph 2, the plaintiff seeks relief by way of a declaration couched in similar terms to the declaration sought in paragraph 1.
In paragraph 3, the plaintiff seeks a declaration that "[the defendant] failed restoration assistance to victimised whistle blower Mr Golden" and that he "made no efforts…to have NSW Premier Gladys Berejiklian dismiss offending [DAFF] DAR Director appointments & recover stolen funds".
In paragraph 4, the plaintiff seeks damages ""including exemplary damages up to [$5m] five million dollars". There is no reference to any recognised cause of action that could found a claim for such damages.
In his submissions, senior counsel for the defendant has carefully summarised the allegations made by the plaintiff in the body of the statement of claim. I agree with them and acknowledge that I have largely adopted them below.
[9]
Paragraphs 1-28
These paragraphs identify the parties and refer to a number of provisions of the Thoroughbred Racing Act 1996 (NSW), the Racing Administration Act 1988 (NSW) and other legislative provisions and rules relevant to Racing NSW. Racing NSW is referred to as an "agent" of the DAFF. A later paragraph of the statement of claim refers to a "Funding Deed" between the Commonwealth "via the DAFF" and Racing NSW relating to the CHAPS. There is no other allegation of any connection between the defendant and Racing NSW. No facts are pleaded that would be capable of giving rise to a relationship of agency between the DAFF (which is not, in any event, an entity) and Racing NSW. It is not at all clear in what respect Racing NSW is an agent of DAFF.
Paragraph 6 refers to the defendant's status as a Minister. Paragraph 7 appears under the heading "THE POWER AND FLINCTIONS OF DAFF MINISTERS" and merely reads "At all times to protect Australian public funds".
[10]
Paragraphs 29 to 71
These paragraphs appear to set out the plaintiff's allegations in relation to the mismanagement of CHAPS. The paragraphs are confused and are interspersed with broad and unparticularised allegations of serious misconduct by Racing NSW and other persons.
There is no reference to the defendant in these paragraphs. All of the matters alleged in these paragraphs predate the defendant's appointment as Minister (on 20 December 2017) by around 10 years.
[11]
Paragraphs 72 to 165
These paragraphs purport to set out events leading up to, and including the warning off of the plaintiff from racecourses controlled by Racing NSW in June 2011. It includes, in [145] to [165], the material facts that gave rise to the claims in the 2013 proceedings brought by the plaintiff against Mr V'landys and Racing NSW.
The paragraphs before [45] relate to events before 2011. Again, the pleadings appear to go to the alleged maladministration of the CHAPS and the plaintiff's complaints to various authorities. Some paragraphs do not have any apparent relationship even to those topics. Again, the allegations are confused, prolix and incomprehensible.
The only reference to the defendant is in paragraph 119(m), which provides: "DAR Mr Vlandys fraud cover up represents DAFF Mr Littleproud's fraud & cover up with zero good governance of public funds [CHAPS]".
No facts or matters are pleaded that explain the alleged connection between Mr V'landys and the defendant, who did not become Minister of the Department previously known as DAFF until December 2017. Nor is there any explanation of how Mr V'landys' conduct could "represent" conduct of the defendant.
No particulars are provided of the serious allegations of fraud and "cover-up" made against the defendant. No conduct on his part is identified in this part of the pleading, let alone any conduct that could support such an allegation. Nor is any conduct pleaded in support of the allegation of "zero good governance of public funds" against the defendant. The allegations pleaded are entirely at large.
However, as I understand it, the plaintiff says that the defendant becomes responsible for the alleged fraud "because he is in the line-up and succession of ministers who have got no other interest other than protecting their former colleagues, as the protection network in Canberra keeping this embezzlement of public funds under covers, under wraps - not out in the public for any court to examine exactly the nature of everything that went down the line". The plaintiff explained that Mr Joyce, the predecessor to Mr Littleproud, sent him a very nice letter and said, "Well, Centrelink can sort out all your compensation claims", and the plaintiff says, "It sort of, it just went on from there" (T8.31.35).
[12]
Paragraphs 166 to 184
These paragraphs purport to set out events after 24 June 2011. All of the allegations in these paragraphs predate the defendant's appointment.
These paragraphs mostly address further complaints by the plaintiff in relation to the administration of CHAPS, as well as responses to those complaints by various persons (not including the defendant).
Again, serious allegations of misconduct are made against a range of individuals, including:
1. Mr Ludwig, the Minister for the DAFF in 2012, who is accused of lying and misleading Parliament; and
2. the solicitors who represented the plaintiff in the 2015 Appeal proceedings, who are accused of having accepted payments in order to "scuttle" his case.
Again, there are paragraphs that appear to be wholly irrelevant even to those topics, including a paragraph dealing with the plaintiff's criticism of the outcome of the NSW Court of Appeal proceedings in 2016.
As before, there are a number of paragraphs that convey no coherent meaning. The defendant is not mentioned at all in these paragraphs.
[13]
Paragraphs 185-196
Paragraphs 185 to 196 appear under the heading "PUBLIC OFFICE". They contain serious allegations of misconduct against numerous public figures and public bodies, including former DAFF Ministers, NSW Premiers and the Public Prosecutors office.
In paragraph 185(d), the plaintiff pleads that "Mr David Littleproud continues CHAPS fraud cover up & misconduct in public office". No basis is identified for that serious allegation.
In paragraph 188, it is pleaded that the defendant, along with other Commonwealth Government Ministers, "accepted embezzled public funds fraud facilitations & cover up". Again, there is not any material fact pleaded to support this serious allegation of criminal conduct.
Paragraph 196 pleads that "Mr Littleproud in his capacity as DAFF MP is at all times a DAFF officer responsible for his [DAFF] Ministry". This may be understood as an allegation that the defendant is a public officer. That is accepted to be the case, though the reference to "at all times" can only be a reference to "times" since his appointment on 20 December 2017.
[14]
Paragraphs 197-229
Paragraphs 197 to 229 address the two decisions of Mr V'landys that were challenged by the plaintiff in the 2013 NSWSC proceedings. It is variously alleged that the decisions were invalid by reason of bias, improper purpose, lack of power, lack of procedural fairness, irrelevant considerations and other matters. These appear to be all the grounds on which the plaintiff sought judicial review of the decisions in the 2013 proceedings. Again, there is no reference to the defendant in these paragraphs.
[15]
Paragraphs 230-235
Paragraphs 230 to 235 appear under the heading "[MR LITTLEPROUD &] MR V'LANDYS' MALICE". Despite this heading, all of the paragraphs relate to Mr V'landys. They do not contain any reference to the defendant's conduct or state of mind.
These paragraphs appear to be pleaded in support of a claim for misfeasance in public office on the part of Mr V'landys, such as the one made against him (and dismissed) in the 2013 proceedings. There is no basis on which the defendant is said to be liable for that alleged conduct, nor could there be.
[16]
Paragraphs 236-258
Paragraphs 236 to 258 appear under the heading "LOSS AND DAMAGE". The loss and damage alleged in these paragraphs is said to arise from the decisions that were the subject of the 2013 proceedings and, maybe, from a further decision made in 2017 by the Racing NSW Deputy Chairman, Mr Hodgson, to reject the plaintiff's application for a training licence.
The defendant is mentioned several times in these paragraphs but no facts or matters are pleaded that connect the defendant to any of the alleged loss and damage. The defendant's liability for the alleged loss or damage is merely asserted.
For example, in [237], the plaintiff claims, "By reason of what appears above (DAR misfeasance & DAFF misconduct in public office) DAVID LITTLEPROUD is liable for Mr Golden's loss". At [241], the plaintiff claims, "By reason of DAFF Agents Racing NSW [DAR] malice towards Mr Golden in DAFF maladministration of public funds, DAFF Minister DAVID LITTLEPROUD is liable to pay Mr Golden's losses and exemplary damages".
This appears to be an allegation that the defendant is vicariously liable for alleged misconduct of other persons (and in particular Mr V'landys), in circumstances where all such alleged misconduct occurred prior to the defendant's appointment, and where none of the persons is, in any case, a person for whom a Commonwealth Minister could be vicariously liable.
At paragraph 249, the plaintiff "requests DAFF David Littleproud pay third party training fees for all Mr Golden's horses for the remainder of Mr Golden's breeding & training life". If this is read as a claim for damages caused by conduct on the part of the defendant, there is no identification of the alleged conduct or how it could have caused this alleged loss.
Again, this part of the pleading contains apparently irrelevant and incoherent allegations. At [252] it is alleged that "DAFF Ministers 2008 Tony Bourke, 2012 Joe Ludwig, 2017 Barnaby Joyce & 2018 David Littleproud guilty of misconduct in public office". No particulars are given, nor is any act or conduct identified on the part of the defendant (or the other Ministers) which would amount to such misconduct.
The only specific allegation of misconduct against the defendant in the statement of claim (and referred to in the September 2018 affidavit) is the allegation identified in paragraph 254 of the pleading, which is set out in full below (emphasis in original). Paragraph 254 pleads:
"On or about 7 June 2018 DAVID LITTLEPROUD letter states 'In the meantime, if you have substantial new evidence supporting your allegations. I will forward it on for appropriate action. Further material forwarded by you that does not constitute sufficient evidence will not be responded to.'"
Sending of a letter in those terms is incapable of supporting, or constituting, the serious allegation of misconduct in public office.
[17]
Previous proceedings brought by the plaintiff
In 2013, the plaintiff brought proceedings in the NSW Supreme Court against Mr V'landys and Racing NSW. In the 2013 proceedings, the plaintiff sought judicial review of two decisions that had been made by Mr V'landys. The first, made on 8 June 2011, was a decision to suspend the plaintiff's trainer's licence for six months. The second, made on 24 June 2011, resulted in the plaintiff being warned off racetracks controlled by Racing NSW indefinitely. The plaintiff also claimed that Mr V'landys had committed the tort of misfeasance in public office.
The hearing before Adamson J took place on 10 and 11 November 2015. The Court gave judgment for the defendants on 17 November 2015. Her Honour's reasons, at [33] to [74], identify the factual contentions in that proceeding concerning two decisions by Mr V'landys that were challenged by the plaintiff, and were alleged to amount to misconduct on his part. A number of these same factual matters appear at [45] to [165] of the statement of claim filed in these proceedings. In particular, there is overlap in respect of the following key events:
1. On 10 May 2011, the plaintiff wrote a letter addressed to the General Manager of Racing NSW, concerning a "scratching fee" that he had been charged in relation to a horse (Abilina).
2. In response to statements made by the plaintiff in that letter, on 16 May 2011, Mr Bulloch (who was chair of the Licensing Committee of Racing NSW) wrote to the plaintiff notifying him that he was required to attend a hearing on 31 May 2011 to show cause why his trainer's licence ought not be suspended or revoked, on the basis that he was not a fit and proper person to be licensed as a trainer.
3. On 19 May 2011, the plaintiff responded to the show cause notice by a letter to Mr Bulloch and another Racing NSW official, in which he accused Mr V'landys of corruption relating to the administration of CHAPS.
4. On 23 May 2011, the plaintiff drove to Grafton Bridge and stood for some two hours next to a large sign that read "RACING NSW CORRUPT CEO ROBS TAXPAYERS".
5. On 24 May 2011, Mr Bulloch notified the plaintiff that the show cause hearing had been amended to include the comments in the plaintiff's letter of 19 May 2011, and the plaintiff's conduct on Grafton Bridge the previous day.
6. On 30 May 2011, the plaintiff held placards with similar accusations against Racing NSW and Mr V'landys outside the office of Ms Saffin, MP, in Lismore.
7. On 31 May 2011, the Licensing Committee of Racing NSW held a show cause meeting in the absence of the plaintiff. Their recommendations were then forwarded on to Mr V'landys.
8. On 8 June 2011, Mr V'landys made the first decision that was the subject of challenge in the 2013 proceedings. That was a decision to revoke the plaintiff's trainers licence for a period of six months, on the grounds that his letters of 10 and 19 May 2011 demonstrated that he was not a fit and proper person to hold a trainer's licence. Mr V'landys informed the plaintiff of that decision by a notice dated 8 June 2011. The plaintiff was also informed that there would be a further show cause hearing on 24 June 2011, as the Committee had not been satisfied that the plaintiff had received the amended show cause notice.
9. On 8 June 2011, Mr V'landys wrote a letter to the plaintiff in relation to his conduct in displaying placards outside Ms Saffin's electoral office.
10. On 8 June 2011, Mr V'landys instructed a firm of solicitors to write to the plaintiff. The letter that Mr V'landys' solicitors wrote to the plaintiff on 10 June 2011 is referred to in [60] of the statement of claim. It alleged that the plaintiff had engaged in conduct that was "seriously defamatory and in bad faith".
11. On 24 June 2011, the Licensing Committee of Racing NSW held a second show cause meeting, again in the absence of the plaintiff. They provided Mr V'landys with their recommendations the same day.
12. On 24 June 2011, Mr V'landys made the second decision that was challenged in the 2013 proceedings. That was a decision that the plaintiff be warned off all racecourses within the control of Racing NSW, for an unlimited period of time.
In the 2015 proceedings, it was argued that the two decisions were invalid on six grounds, including actual and apprehended bias. Her Honour did not find any of the grounds made out. Her Honour also rejected the claim for misfeasance in public office against Mr V'landys, noting that the only element of the tort that had been made out was the purported exercise of power by a public officer.
In 2015, the plaintiff appealed to the NSW Court of Appeal from the orders of Adamson J. The appeal was allowed. The Court held that the second decision of Mr V'landys was invalid on the ground of apprehended bias, which arose by reason of Mr V'landys' threatened defamation proceedings against the plaintiff. The appeal in relation to the claim for misfeasance in public office failed, as the plaintiff had failed to prove Mr V'landys' knowledge of, or reckless indifference to, the invalidity of the second decision.
[18]
Abuse of process
The making of a claim or raising of an issue which was made or raised for determination in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel: see Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [26].
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Rep 81-423 (64,077) involved an attempted re-litigation of an issue that had already been decided between the plaintiff and a third party in an earlier proceeding. In determining whether there was an abuse, Giles CJ Comm D considered several factors at 64,089, which were cited with approval by Beazley P in O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315; (2013) 85 NSWLR 698 at [106] and [107]. Those factors relevantly include:
1. the importance of the issue in and to the earlier proceedings;
2. the terms and finality of the finding as to the issue sought to be relitigated;
3. the identity between the relevant issues in the two proceedings;
4. the extent of the oppression and unfairness to the other party if the issue is relitigated;
5. the impact of the relitigation upon the principle of finality and on the public confidence in the administration of justice; and
6. the overall balance of justice between the parties.
It is my view that the plaintiff's attempt to relitigate the same claim of misfeasance in public office now against this defendant in these proceedings, in lieu of Mr V'landys in the previous proceedings, constitutes an abuse of process.
[19]
Misfeasance in public office
The precise limits of the tort are still undefined: see M Aronson, "Appendix B - Misfeasance in Public Office", available at UK Law Commission, "Misconduct in Public Office"; R P Balkin and J L R Davis, Law of Torts (5th ed, 2013, LexisNexis Butterworths; T Cockburn and M Thomas, "Personal liability of public officers in the tort of misfeasance in public office" - Part 1 (2001) 9 Torts Law Journal 1.
Misfeasance in public office can be summarised as an intentional tort which occurs when a public officer commits an invalid or unauthorised act (or omission) causing harm to the claimant, where there is a foreseeable risk of harm being caused by that act, and where either the public officer has the malicious intention of causing harm to a claimant, or where that officer knows (or ought to have known) there is no power to do the act relied on.
Deane J in Northern Territory of Australia v Mengel (1995) 129 ALR 1 at 37 set out the elements of the tort as follows:
"(a) an invalid or unauthorised act;
(b) done maliciously;
(c) by a public officer;
(d) in the purported discharge of his or her public duty;
(e) which causes harm to the plaintiff."
Also in Three Rivers District Council v Governor and Company of the Bank of England No 3 [2000] 3 All ER 1, Lord Steyn identified the elements of the tort of misfeasance in public office as:
"(a) the defendant must have been a public officer;
(b) the impugned act must have involved the exercise of power as a public officer;
(c) the defendant must have had the requisite state of mind:
(i) targeted malice - a specific intention to injure a person or persons; or
(ii) knowledge that he had no power to do the act complained of and that it would probably injure the plaintiff. This was said to involve "bad faith" in as much as the public officer did not have an honest belief that the act was lawful."
The defendant submitted that the claim should not be permitted to proceed for the following reasons. First, the pleading as a whole discloses no reasonable cause of action against the defendant. The only allegation in the statement of claim that hints at a recognisable cause of action, namely misfeasance in public office, is at [252].
Arguably, the statement of claim contains at [96] an allegation that the defendant was a public officer. As noted above, it is not disputed that (as from the time of his appointment as Minister on 20 December 2017) the defendant has been, in that capacity, a public officer.
The only reference in the statement of claim to any public power or public duty attaching to that public office is at paragraph [7] which is headed "THE POWERS AND FUNCTIONS OF DAFF MINISTERS", and which simply states: "At all times to protect Australian public funds". Plainly, the defendant could only have been subject to this alleged duty, which is pleaded in broad and undefined terms, since 20 December 2017.
So far as any conduct on the part of the defendant is concerned, there are very few references to him in the statement of claim. He is mentioned in only 13 of the 258 paragraphs. Most of these are entirely unparticularised and unsupported claims of a cover up of CHAPS fraud.
The only specific conduct alleged against him is the writing of the letter referred to in paragraph 254 of the claim, which is quoted above. The writing of this letter is not alleged to have been the exercise of a public power, although the claim for relief refers to this letter in [1] as a "decision…to inform the plaintiff…that [he] had not provided sufficient evidence to [the defendant]." The writing of such a letter is not an exercise of public power for the purpose of founding the tort: see discussion by Bromwich J in Grass v Slattery [2018] FCA 1719 at [159] to [165]. The letter, as quoted, is merely an invitation to provide information, which (if provided) will then be forwarded to another entity for consideration.
Even if it were regarded as an exercise of some (unidentified) power, there are no allegations of fact capable of supporting any of the other elements of the tort. There are no allegations that:
1. the sending of the letter was ultra vires or otherwise wrongful;
2. the defendant knew that that it was wrongful or was recklessly indifferent to the existence of a relevant power to send the letter;
3. the defendant intended to cause injury to the plaintiff or was recklessly indifferent to that possibility.
Finally, and critically, none of the loss or damage claimed by the plaintiff relates to the writing of this letter, or even any event that occurred after the defendant was appointed Minister. The losses claimed appear to relate to the decisions in 2011 to permanently warn the plaintiff off racetracks and to suspend his trainer's licence, conduct for which the defendant cannot be held liable.
The plaintiff's claim for misfeasance in public office is hopeless and should be struck out. Similarly, there are no facts to support the claims for embezzlement of public funds or misconduct in public office. These claims are also hopeless.
Further, if the above view is incorrect, senior counsel for the defendant referred to the judgment of Margaret Wilson AJA (with Muir JA and Fraser JA agreeing) in Moder v Commonwealth of Australia [2012] QCA 92 ("Moder"), which is a similarly-framed claim of misfeasance in public office. At [65] and [67] her Honour stated:
"[65] In Northern Territory v Mengel, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ observed that the precise limits of the tort are still undefined. Their Honours continued -
However, the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the office concerned knowingly acts in excess of his or her power." (Citations omitted.)
…
[67] In Mengel the majority said -
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."
Her Honour continued at [70] to [74]:
"[70] As the High Court observed in Mengel, the tort of misfeasance in public office is the tort of an individual public officer, for which he or she is personally liable. It is not the tort of the public officer's employer. In the present context, the defendant (the Commonwealth) would not be vicariously liable for its officers' intentional conduct, unless it authorised that conduct. That is not the case that has been pleaded.
[71] Ms Sochorova's pleading is premised on a fundamental misconception of the tort of misfeasance in public office.
[72] She has not pleaded that one or more officers knowingly acted in excess of their powers. Even if an inference of bad faith on the part of an individual officer could be drawn from a multiplicity of errors by that officer over a period of time, that is not the case that has been pleaded.
[73] Paragraph 13(a) of the statement of claim seems to be an allegation that bad faith can be inferred from the multiplicity of errors by the department and the MRT over seven years. However, a case of misfeasance in public office cannot be built upon a foundation that is a composite of the conduct of a number of individual officers, let alone a department or a statutory tribunal.
[74] In short, I consider that the primary judge was correct to strike out the claim for misfeasance in public office." (Citations omitted.)
Similarly, in these current proceedings, the plaintiff seems to allege that the allegations of bad faith and fraud can be inferred from an alleged multiplicity of errors by wide-ranging officers of government departments and statutory bodies, from 2008 to date. As is stated in Moder, a case of misfeasance in public office cannot be built upon a foundation that is a composite of the conduct of a number of individual officers, let alone a department or a statutory tribunal.
In relation to the remainder of the pleadings:
1. Pre-December 2017 events: All of the allegations relate to events that are said to have occurred before the defendant was appointed Minister of the Department of Agriculture and Water Resources. There is no basis on which the defendant could be held to be liable in respect of the acts or omissions of other persons or authorities occurring prior to his appointment as Minister.
2. Apparent claims for vicarious liability: None of the persons alleged by the plaintiff to have engaged in misconduct is a person for whom the defendant could be held vicariously liable (even if, which is not the case, the alleged conduct had occurred at the time the defendant was the Minister). These include Mr V'landys (CEO of Racing NSW), Mr Hodgson (a Racing NSW official), Mr Fanning (a Grafton Steward), the auditors of CHAPS, Mr Bulloch (another Racing NSW official), Members of the NSW Parliament, the NSW Premier, former Ministers of DAFF, other Federal Ministers, staff of the Prime Minister's office, and unidentified staff of DAFF.
3. Loss: The pleadings do not connect any of the claimed losses to any act or omission of the defendant.
4. Relief: The declaratory relief sought by the plaintiff does not appear to arise from an interference with any recognised private right that he possesses.
The plaintiff's case against the defendant for actions prior to 20 December 2017 (before he became the Commonwealth Minister for Agriculture and Water Resources) is hopeless. It cannot possibly succeed, so these claims should be dismissed.
Further, many of the paragraphs of the pleading convey no coherent meaning and are so unintelligible as to embarrass the defendant, in the sense that he cannot know what is alleged against him. They include, for example:
"119 Owners later purchase of damaged horses with internal injuries bowed tendon racing career ended prospects, does not appear to concern persons as Mr Vlandys in marketing strategies to attract new owners to horse racing."
….
129 Only CHAPS compliance reference & track usage verifications of $235m CHAPS mismanagement is Mr Golden's track usage example in today's claim."
Apart from the difficulty the defendant has in ascertaining the meaning of many paragraphs of the claim, the pleading contains irrelevant comments rather than facts. For example:
"119 Mr Golden's successful fraud CHAPS trainer had the last laugh on DAFF, DAR & Australian Taxpayers naming two horses My Alibi & Shifty Giggle with CHAPS funds from Mr Vlandys & cover up assistances.
…
173 Late 2015 Mr Golden's son still in contact with Mr Golden's reported fraud trainer son heard about Mr Golden's life time ban training horses. The son asked his father "Why was Mr Golden given a life time ban training horses? To which the son's father replied "For speaking the truth". [Mr Golden's son & reported fraud trainers son were in the same class at the same school)
…
[238] In the United States of America, whistle blowers are rewarded for bringing attention to mismanagement & theft of public money, and quantified same, Mr Golden's claim today is an appropriate time to test Australian damages awarded,
…
[255] A prophet is only despised in his own country among his own relations and in his own house."
There is such a significant quantity of objectionable material in the pleading that the Court can be satisfied that the pleading as a whole would tend to prejudice the fair trial of the action, and ought be struck out.
Of concern is that the statement of claim contains numerous serious allegations of dishonesty, fraud and misconduct against third parties that are unsupported by any particulars. For example, it is alleged that: the former Minister of DAFF, Mr McGauran, fraudulently facilitated approval of the mismanagement of $235 million in public funds; Mr Fanning, Grafton Steward, covered up CHAPS fraud in February 2008; the Deputy Chairman of Racing NSW, Mr Costa, mislead other Racing NSW officials with false records; Mr V'landys covered up fraud and lied to the press; a DAFF officer, Mr Thompson, covered up fraud in 2009; auditors allegedly "whitewashed" CHAPS embezzlement and fraud; a NSW Minister for Racing, Mr Green, concealed CHAPS embezzlement; and solicitors accepted payments in return for sabotaging their own client's case.
The statement of claim pleads facts and matters that were determined in the 2013 proceedings which the plaintiff brought against Mr V'landys. In particular, all allegations of misconduct in public office made against Mr V'landys were dismissed by the Court of Appeal in 2016. In those circumstances, even if there were (which is plainly not the case) some basis on which it could possibly be alleged that a Commonwealth Minister appointed in December 2017 was vicariously liable for the conduct six years earlier of an officer of a NSW statutory corporation, these allegations regarding Mr V'landys' conduct would have to be struck out as an abuse of process. Any re-litigation of them would reflect poorly on the principle of finality and tend to undermine the public confidence in the administration of justice.
It is my view that the whole of the pleading in the statement of claim is doomed to fail.
[20]
Discretion to replead
That leaves the issue as to whether I should exercise my discretion to permit the plaintiff to replead a statement of claim which overcomes the difficulties in the current pleadings, or dismiss these proceedings.
The defendant submitted that given the seriousness of the defects in the pleadings, and the lack of any plausible connection between the defendant and any of the issues that the plaintiff seeks to agitate, there is no reasonable prospect that those defects could be cured by granting the plaintiff an opportunity to amend. The claim should be dismissed and/or the statement of claim should be struck out in its entirety.
At the hearing, I asked the plaintiff, "If I gave you another opportunity, how is it going to get any better? .…You have to put in the actual facts you rely on, not everything that happened, the actual facts that establish the cause of action. That is not what you have done. You have given me a narrative of how you have been bullied, harassed, et cetera." The plaintiff replied, "I have lost my home, life and savings for reporting a fraud that the ministers have turned around and protected the thieves, your Honour. I mean, I can't express it any more simply than that" (T11.6-14). The plaintiff's explanation leads me to conclude that he is unable or unwilling to articulate and properly plead a focussed case against the defendant. The current pleading suffers from abuse of process, embarrassment and issue estoppel. It is incoherent. Most of the claim relates to events that occurred before the defendant became the Commonwealth Minister for Agriculture and Water Resources. These claims cannot form the basis of an amended statement of claim. In these circumstances and in the exercise of my discretion, it is in the interests of justice not to grant the plaintiff the opportunity to replead his statement of claim. The proceedings are dismissed.
[21]
Costs
Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs on an ordinary basis.
[22]
The Court orders that:
(1) These proceedings are dismissed.
(2) The plaintiff is to pay the defendant's costs on an ordinary basis.
[23]
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Decision last updated: 22 February 2019