GUISEPPE EMANUELE v ANTHONY ROBERT HEDLEY, RONALD ALWIN GREY, BRIAN BATES, PETER JOHN LAMB, ARTHUR BROWN, ALLAN JOHN DAU, PETER EDWARD PHILLIPS, IAN DOUGLAS TEMBY, MARK SAMUEL WEINBERG, MICHAEL ROZENES and THE COMMONWEALTH OF AUSTRALIA.

Federal Court of Australia|1998-06-19|Before: Higgins J, Nicholson JJ

REASONS FOR JUDGMENT THE COURT: These are appeals against orders of Higgins J of the Supreme Court of the Australian Capital Territory, entering summary judgment in favour of the respondents in two actions instituted in that Court by three plaintiffs, Guiseppe Emanuele, Emanuel Holdings Pty Ltd and Emanuel Management Pty Ltd. The two actions are SC796 of 1991 and SC994 of 1996. At the time of his Honour's order there were eleven surviving defendants in each action: Anthony Robert Hedley, Ronald Alwin Grey, Brian Bates, Peter John Lamb, Arthur Brown, Allan John Dau, Peter Edward Phillips, Ian Douglas Temby, Mark Samuel Weinberg, Michael Rozenes and the Commonwealth of Australia. Separate notices of appeal were filed in respect of each action. In each case all three plaintiffs were named as appellants. Subsequently, the two companies discontinued their appeals, leaving Mr Emanuele as sole appellant. Moreover, in written submissions filed by his solicitors pursuant to orders made by the Court on 28 October 1997, Mr Emanuele abandoned his appeals against the second to tenth respondents, various police officers and three successive Directors of Public Prosecutions. The appeals against these nine respondents will be dismissed by consent. Mr Emanuele maintained both appeals as against Mr Hedley (the first respondent) and the Commonwealth of Australia (the eleventh respondent). These reasons deal with those claims.

The present proceedings Action SC796 of 1991 was commenced on 4 November 1991. At that time a Writ of Summons was filed that named 21 defendants, including Mr Hedley but not the Commonwealth of Australia. The indorsement to the Writ of Summons alleged eight causes of action against Mr Hedley alone; three counts of conspiracy against all 21 defendants; and two counts of trespass and one count of detinue, against various police officers. For a long time, nothing much happened in connection with the action. The criminal proceeding was still on foot. The writ remained unserved and was renewed from time to time. After the Full Court decision, on 4 December 1995, finally concluded the criminal proceeding, the plaintiffs applied to the Registrar of the Supreme Court for orders granting them leave to amend the writ in various respects, including by the joining of some additional defendants, amongst them the Commonwealth, and the addition of claims for malicious prosecution and abuse of process. By that time both plaintiff companies were in liquidation. On the instruction of the liquidator, the plaintiffs' solicitors sought to continue the proceedings on behalf of the companies and to amend the writ accordingly. All the desired orders were made, ex parte, on 9 April 1996. In August 1996 other defendants were added. On 9 August 1996 the defendants applied for summary judgment in relation to some of the claims. On 21 August 1996 the plaintiffs filed a Statement of Claim. On 16 October Higgins J made orders granting the plaintiffs leave to discontinue against all defendants other than the eleven defendants named earlier in these reasons. His Honour also granted the plaintiffs leave to further amend the indorsement to the writ, subject to the right of the defendants to object to the insertion of causes of action by way of amendment that would have been statute-barred if asserted in a new proceeding: see Weldon v Neal (1887) 19 QBD 394. The result of those amendments was a series of causes of action against Mr Hedley that Higgins J summarised in this way: "1. Damages for abuse of process to attain an improper and collateral purpose actuated by malice. 2. Damages for misfeasance in public office. 3. Damages for negligent/fraudulent misrepresentation on 27 and 28 November 1985, (apparently by falsely representing that he was prepared to accept a bribe). 4. Damages for negligence and/or breaches of duties of care, including statutory duties. 5. Damages 'on the case' for directing unlawful acts at the plaintiffs so as to cause them damage. 6. Damages for the 'tort of negligent or intentional infliction of harm, upon the plaintiffs.'" The same causes of action were pleaded against the Commonwealth, substantially on the basis that it was vicariously liable for Mr Hedley's acts and omissions. On 4 December 1996 the plaintiffs instituted action SC994 of 1996. The writ claimed damages for malicious prosecution against the then remaining 11 defendants, including Mr Hedley and the Commonwealth. On the same day the plaintiffs filed an Amended Statement of Claim relating to action SC796 of 1991. The defendants applied for summary judgment in each action, in relation to all the remaining claims, pursuant to Order 17 rule 1 of the Rules of the Supreme Court of the Australian Capital Territory. They sought other relief in the alternative, including the striking out of the relevant Statement of Claim. Higgins J heard the applications on 19 and 20 December 1996. On 7 March 1997 his Honour delivered reasons for judgment in which he discussed each of the causes of action pressed by the plaintiffs. In each action, he entered summary judgment for the defendants in respect of all causes of action. On 2 April 1997 the plaintiffs filed Notices of Appeal against those orders. These are the appeals now before us.

The Rules Order 17 rule 1 of the Rules of the Australian Capital Territory Supreme Court has recently been recast although the change is immaterial to this case. As at the date of the hearing by Higgins J, the rule read: "1. Any defendant to an action may, within 10 days after appearance, or at any later time by leave of the Court, apply to the Judge for summary judgment, and if the Judge is satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, the Judge - (a) may order that judgment be entered for the defendant with or without costs; (b) may order that the plaintiff shall proceed to trial without pleadings; or (c) if all parties consent, may dispose of the action finally, and without appeal, in a summary manner." As so framed, the rule was similar in effect to Order XIVA of the Rules of the Supreme Court of Victoria in relation to which it has been said "the power ... should be reserved for exercise as to actions that are hopeless": see per Barton J in Bayne v Baillieu (1908) 6 CLR 382 at 398 and per Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 90-91. In the latter case Dixon J went on to say: "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Barwick CJ followed this approach in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, a case arising under the Rules of the New South Wales Supreme Court. At 129 he said: "(the) cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated." In their comment on Order 17 of the Australian Capital Territory Supreme Court Rules, the learned authors of Civil Procedure ACT list a number of examples of appropriate use of the summary judgment procedure. Omitting the cited authorities, the list reads: "(a) where the plaintiff admitted he had no cause of action and did not intend to proceed: ... (b) where the plaintiff did not comply with the Statute of Frauds: ... (c) where the action raises matters already decided in litigation between the same parties: ... (d) where the court lacks jurisdiction over the subject matter of the proceedings: ... (e) where earlier proceedings have been struck out for failure to comply with an order and no explanation of the failure is made: ... (f) where the plaintiff had proceeded to judgment, which had been satisfied, against a concurrent tortfeasor for the same act: ... (g) where there was a lack of interest in the plaintiff sufficient to give him or her standing to sue: ... (h) where the limitation period had expired: ... (i) where the plaintiff had the opportunity to raise the claim in earlier proceedings but failed to do so, sometimes called 'cause of action estoppel': ..." Order 23 rule 28 of the Australian Capital Territory Supreme Court Rules deals with striking out pleadings. It reads: "28 The Court may, at any stage of the proceedings, order to be struck out or amended any matter in any indorsement or pleading which is unnecessary or scandalous, or may tend to prejudice, embarrass, or delay the fair trial of the action, and may in any such case, if it or he thinks fit, order the costs of the application to be paid as between solicitor and client." The extant causes of action The Amended Statement of Claim filed by the plaintiffs in action SC796 of 1991 is verbose, tortuous and confused. It disregards most of the canons of pleading and would cause embarrassment to the defendants if they were required to frame Defences. If this action remains on foot, it will be appropriate to order the pleading be struck out and replaced with a Further Amended Statement of Claim that pleads the remaining causes of action succinctly and in accordance with usual pleading principles. However, if Higgins J was correct in entering summary judgment in this action, it is unnecessary to put the plaintiff to the trouble and expense of doing this. Counsel's written submissions identify, and sufficiently explain, the causes of action that are pressed. Adopting the order in those submissions, they are: (i) intentional infliction of harm; (ii) abuse of process; (iii) misfeasance in public office; and (iv) negligence. To this list must be added the claim in action SC994 of 1996: (v) malicious prosecution. We will consider each of these causes of action separately; but rearranging them into a more convenient order. It will be noted the five causes of action divide into two categories: those that depend entirely on the events of 1985 and involve proof by Mr Emanuele of his action in paying the $10,000 bribe (numbers (i),(iii) and (iv)) and those that do not involve proof of that fact but arise out of the prosecution for bribery (numbers (ii) and (v)).

Intentional infliction of economic harm Paragraphs 265 to 285 of the Amended Statement of Claim in action SC796 of 1991 lump together allegations about what the pleading calls the "tort of negligent or intentional infliction of harm". The drafter seems to have assumed there is a tort of negligent infliction of harm that is different in kind from the tort of negligence, including in that term negligent misstatement. We say this because paras 206 to 223 of the Amended Statement of Claim deal with what the drafter called "Fraudulent or Negligent Misrepresentation" and paras 224 to 244 with "Negligence and Breaches of Duties Including Statutory Duties". We will come to those two parts of the pleading later. In relation to paras 265 to 285, whatever the assumption of the pleader, they are now supported only as a claim of intentional infliction of economic harm. And in that regard, having regard to the reduction in parties, it is necessary now to consider only what is said in relation to Mr Hedley and the Commonwealth. Paragraphs 265 and 266 claim Mr Hedley was under a duty of care to the plaintiffs in his capacity as a public servant, First Assistant Secretary of the Department of Territories and Chairman of an InterDepartmental Committee concerned to sell the Belconnen Mall. Paragraph 267 alleges Mr Hedley breached this duty. The paragraph particularises the breach by referring to 80 pages of allegations set out earlier in the Amended Statement of Claim. These allegations comprise the plaintiffs' version of the 1985 events, with copious reference to evidence. Because of this unsatisfactory form of pleading, the document fails to indicate exactly what the plaintiffs contend regarding breach of duty. However, as we understand the appellant's argument, it is that Mr Hedley intentionally inflicted economic harm by statements and actions calculated to cause Mr Emanuele to believe that he (Mr Hedley) was corruptible and actually to pay him a bribe, as a result of which the tender of the plaintiff companies (or one of them) for purchase of the Mall was rejected, to the plaintiffs' direct and indirect financial disadvantage. Although it is not clear, we assume in favour of the appellant that the Amended Statement of Claim is also intended to raise a claim that Mr Hedley intentionally inflicted economic harm by reporting to his superiors a conversation he allegedly had with Mr Fabrizioni on 13 November 1985 (see 60 FCR at 272-273). Paragraphs 277 to 285 of the Amended Statement of Claim plead the case against the Commonwealth in respect of this cause of action, relevantly only in terms of the Commonwealth being vicariously liable for Mr Hedley's misfeasance. In Northern Territory of Australia v Mengel (1995) 185 CLR 307 the High Court of Australia overruled Beaudesert Shire Council v Smith (1966) 120 CLR 145, in which the Court had stated (at 156) that "independently of trespass, negligence or nuisance but by an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other". The Beaudesert principle would not have assisted Mr Emanuele in this case because it could not have been said that harm or loss was an inevitable consequence of Mr Hedley intimating to Mr Emanuele that he was corruptible; Mr Emanuele might have resisted the invitation to corrupt. But counsel for Mr Emanuele argues Mengel recognised a tort of intentional infliction of economic harm. He refers to a passage in the joint judgment of Mason CJ, Dawson J, Toohey J, Gaudron J and McHugh J at 343 in which reference was made to the emergence in the United Kingdom "of a tort of interference with trade or business interests by an unlawful act directed at the person injured, although not necessarily done for the purpose of injuring his or her interests". The word "unlawful" is important to this formulation. If it were not included, people would be liable in damages for the results of successful commercial competition. In relation to the present case, and this cause of action, the effect of its inclusion is that any attempt to rely on Mr Hedley's report to his superiors about the Fabrizio conversation is misconceived. The making of that report was not unlawful. In Mengel their Honours observed that, unlike the Beaudesert situation, the "emerging tort requires that the unlawful act be directed at the person injured"; but the United Kingdom cases they cited make clear it is not necessary for the predominant purpose of the tortfeasor to have been injury to the plaintiff, rather than furtherance of the tortfeasor's own financial ends. The proposition put to us by counsel for Mr Emanuele is that all the elements of the "emerging tort" are alleged in this case, "in particular the intent and act of Hedley to inflict economic harm upon Emanuele together with the loss and damage incurred as a result thereof" pleaded in the Amended Statement of Claim. He submits Higgins J wrongly treated the tort as being confined to cases of threat or coercion. We do not think Higgins J did confine the tort in that way. He referred to threat and coercion only to distinguish between this case and one like Rookes v Barnard [1964] AC 1129, which was a claim of intimidation. As presently framed, the Amended Statement of Claim does not adequately plead intentional infliction of economic harm. The pleading does no more than assert a duty of care and breach of that duty, matters immaterial to an intentional tort, and consequential loss and damage. However, a mere deficiency of pleading would not normally justify an order entering summary judgment; the Court would normally give a further opportunity to amend. On the other hand, if the deficiency is fundamental, in the sense that even a properly pleaded claim must fail, summary judgment is appropriate. It seems to us this is the case. The alleged unlawful actions were intimations by Mr Hedley to Mr Emanuele that he was susceptible to being corrupted. We assume in Mr Emanuele's favour that these intimations were each an "unlawful act" within the jurisprudence concerning the "emerging tort". What was their consequence? It was not, as it seems to us, to visit on Mr Emanuele the loss or damage referred to in para 268 of his Amended Statement of Claim. Mr Emanuele might have ignored Mr Hedley's intimation, in which case the unlawful actions would have had no adverse consequence. On Mr Emanuele's own case, the loss and damage of which he complains arose out of the fact that he chose to engage in criminal activity as a result of which he was arrested and prosecuted and his companies disqualified from the tender process. It is true the intimations of susceptibility induced his choice, in the sense that absent the intimations he would probably not have offered the bribe. But that does not diminish the fact that the bribe offer was a deliberate, rational and voluntary act. It is also true Mr Emanuele's conviction for bribery was eventually set aside. That does not alter the fact that the allegations in support of this cause of action necessarily include an allegation that Mr Emanuele succumbed to Mr Hedley's intimations and paid him a bribe. Contrary to the submission of counsel for Mr Hedley, we do not think this case is covered by authorities like Gala v Preston (1991) 172 CLR 243 and Italiano v Barbaro (1993) 40 FCR 303; they were actions for negligence in which it was held the circumstances were such as to negative the existence of a duty of care. The relevant principle is related to that, but more fundamental in its nature. It was discussed by two members of the High Court of Australia in Smith v Jenkins (1970) 119 CLR 397. That was a motor accident negligence case but Kitto and Walsh JJ decided it on a wider basis than absence of duty of care. Kitto J rested his judgment (at 24) on a principle stated by Scrutton LJ in Hillen v ICI (Alkali) Ltd [1934] 1 KB 455 at 467, "the whole transaction is known by each party to be illegal and there is no contribution or indemnity between joint tortfeasors". Kitto J reformulated this principle by saying "that persons who join in committing an illegal act which they know to be unlawful (or ... must be presumed to know to be unlawful) have no legal rights inter se by reason of their respective participations in that act". Walsh J discussed the possible theoretical bases for denying a right of action by one party to a criminal act against another. He concluded (at 432) that there was a rule "by which the courts refuse to recognise a right of action in some cases of criminality". He went on to make clear this applied to participation in a joint criminal enterprise. It is of the essence of the cause of action under present examination, intentional infliction of economic harm, that Mr Hedley knew his intimations of corruptibility were unlawful acts and Mr Emanuele suffered damage because he responded to those intimations by carrying out the unlawful act of offering a bribe. The case is that the two men knowingly joined in committing an illegal act, the payment and receipt of a bribe. In Gollan v Nugent (1988) 166 CLR 18 five members of the High Court accepted, as a general principle, that the court will not lend its aid to a person who founds his action on an illegal act: see per Brennan J at 27 and per Deane, Dawson, Toohey and Gaudron JJ at 46. They made clear the plaintiff's illegal conduct must be central to his or her claim; but that is the present case. Reference should also be made to State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500. The plaintiff in that case was injured as a result of his employer's negligence. Subsequently, but before the trial of his damages claim, he was imprisoned for cultivating and supplying indian hemp. The trial Judge found his decision to embark on that criminal activity stemmed from the impecuniosity he suffered as a result of his injuries and therefore disregarded the fact of his imprisonment in assessing his loss of income. By majority (Samuels and Handley JJA; Kirby P dissenting), the New South Wales Court of Appeal held this approach erroneous. Samuels JA cited Chapman v Hearse (1961) 106 CLR 112 at 122 for the proposition that the notion of reasonable foreseeability merely "marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act". He also referred to March v E & M H Stamere Pty Ltd (1991) 171 CLR 506 in which the High Court rejected the "but for" test as the exclusive test for causation, the Justices noting that determination of causation is a value judgment involving policy considerations. After consideration of numerous authorities, Samuels JA said at 517: "To my mind, a defendant should not be held responsible for the losses a plaintiff sustains that result from a rational and voluntary decision to engage in criminal activity. Such losses, to echo the words of Chapman, fall outside the limits for which the wrongdoer should be held responsible. There was no suggestion that the respondent's criminal conduct in the present case was not based upon voluntary and rational decisions. Indeed, his conviction and sentence for the crimes in question necessarily proceed upon the hypothesis that his conduct was so based." In the present case it cannot be doubted Mr Emanuele's decision to offer Mr Hedley a bribe represented a "rational and voluntary decision to engage in criminal activity". On the basis that Mr Hedley in fact acted in the manner alleged in the Amended Statement of Claim, it was a foreseeable decision, and so within the outer limit stated in Chapman. But that is not sufficient to enable recovery of damages. Particularly having regard to its known criminality, Mr Emanuele's own voluntary act must be regarded as the cause of his alleged damage, rather than the conduct he attributes to Mr Hedley. As a matter of law, the action for intentional infliction of economic harm must fail. It is unnecessary to consider further points raised by the respondents, including the weighty argument of the Commonwealth that the action against it for intentional infliction of harm (and negligence and misfeasance in public office) is caught by the rule in Weldon v Neal. It was first made over ten years after the events of 1985, including the disqualification of the appellants' tender, that are said to have caused the appellant's damage. If made in a new proceeding, it clearly would have been out of time.

Negligence In dealing with negligence, no distinction needs to be made between the claim of negligent misrepresentation (paras 206 to 223 of the Amended Statement of Claim) and negligence simpliciter (paras 224 to 244). The principles that dictate failure of the claim of intentional infliction of economic harm apply equally to both negligence claims; if anything, the situation is even clearer, having regard to cases like Gala v Preston and Italiano v Barbaro. These claims must also fail, as a matter of law.

Misfeasance in public office The High Court took the opportunity in Mengel to clarify the ingredients of the tort of misfeasance in public office. At 345 Mason CJ, Dawson J, Toohey J, Gaudron J and McHugh J referred to cases that indicated "it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power". They went on to discuss three cases that suggested a wider duty but rejected the existence of any wider duty. Paragraphs 167 to 175 of the Amended Statement of Claim contain the plaintiffs' allegations about this cause of action. Stripping away much unnecessary verbiage, these paragraphs allege Mr Hedley was a public officer holding or occupying a public office, that his conduct was unlawful, in breach of the criminal law, entered into for an improper purpose and an abuse of his office. It is claimed the plaintiffs suffered loss or damage as a result of that conduct. Although the Amended Statement of Claim fails to define the precise actions of Mr Hedley that are said to constitute misfeasance in public office, Higgins J dealt with the summary judgment application on the basis there were two items of relevant conduct: Mr Hedley's disclosure of information concerning other tenderers at the dinner of 18 October 1985 (see 60 FCR at 271-272) and his alleged false report to his superiors of a conversation between himself and Mr Fabrizioni on 13 November (see 60 FCR at 272-273). Perhaps it is fair to add a third item: the intimations of corruptibility given in some of the conversations recorded by the listening devices: see 61 FCR 274-276. The report of the Fabrizioni conversation clearly cannot found an action for misfeasance in public office. Whether the report was true or false, its compilation and delivery were not actions done in the exercise of powers attaching to a public office. They were simply the actions of an employee reporting an alleged event to superior officers. We agree with the following comment of Higgins J: "However, the prosecution of Emanuele did not follow and was not the consequence of any power given to Hedley to act so as to report that conversation. He did not purport, for example, to declare Emanuele an ineligible tenderer by reference to some supposed head of executive or legislative power in reliance on that conversation. Nor is that alleged. He simply made an allegation to his superior which, if true, might have indicated a criminal intent on Emanuele's part and led to the exclusion of him and his companies from the tender process. That might have been defamation or injurious falsehood. However, as it did not lead to the exercise by him of any legislative or executive power, it is not malfeasance in public office on his part." In any event, it was not Mr Hedley's report that caused the disqualification of the Emanuele tender or the prosecution of Mr Emanuele for bribery. Those events occurred because of Mr Emanuele's own criminal act in paying a bribe. Paragraphs 195 to 205 concern the misfeasance in public office claim against the Commonwealth. Paragraph 202 contains a general statement that, as the employer of Mr Hedley, the Commonwealth is vicariously liable for his conduct; presumably this is intended to include the conduct referred to in paras 167 to 175. There are also allegations of misfeasance by the Commonwealth itself. These consist of the use of legal process to accomplish a purpose other than that for which it was designed and the malicious prosecution of Mr Emanuele. It is not apparent to us why these claims have been included under the rubric of misfeasance in public office; if they have any substance they will clearly be covered by the specific claims of abuse of process and malicious prosecution. More generally, it is a legal nonsense to suggest there can be conduct of the Commonwealth itself that constitutes a misfeasance in public office. The Commonwealth of Australia is a legal entity created by the Commonwealth of Australia Constitution Act 1900. It is a juristic person but, of course, is incapable of acting except through agents. It is incapable itself of committing misfeasance in public office; it does not hold public office. In relation to vicarious liability, it may be noted that in Mengel (at 347) Mason CJ, Dawson J, Toohey J, Gaudron J and McHugh J said 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". There may be a question whether, in discussing with Mr Emanuele the prospective sale of the Belconnen Mall, Mr Hedley was acting in a public office. He was a public officer, in the sense that he was a senior officer of a Department of the Commonwealth government, but his actual activity was no different to that daily undertaken by many people in the private sector: the stimulation of interest in a real estate transaction. However, the decision of the English Court of Appeal in Jones v Swansea City Council [1990] 1 WLR 54 suggests this does not constitute a reason for denying that Mr Hedley was acting in public office. Jones arose out of a resolution of a local government authority rescinding a consent granted by it pursuant to a lease. All members of the Court of Appeal proceeded on the basis that the question was whether the relevant power had a "statutory or public origin". They held it did, notwithstanding that it was not different from the power held by many private lessors. At 71 Slade LJ said: "The essence of the tort, as I understand it, is that someone holding public office has misconducted himself by purporting to exercise powers which were conferred on him not for his 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 was acting ultra vires. All powers possessed by a local authority, whether conferred by statute or by contract are possessed 'solely in order that it may use them for the public good:' see Wade, Administrative Law, 6th ed. (1988), p.400. In the present context, in my judgment, it is not the juridical nature of the relevant power but the nature of the council's office which is the important consideration." See also per Nourse LJ at 85. In the light of this authority, we think it preferable to assume, in Mr Emanuele's favour, that Mr Hedley acted in public office in conducting his discussions with Mr Emanuele. In conducting discussions with Mr Emanuele, Mr Hedley acted on behalf of the Commonwealth; he enjoyed express authority. But it is not the general conduct of discussions that founds the allegation of misfeasance in public office; it could not be, since there was nothing improper about mere discussion of the projected sale. The improper conduct, on Mr Emanuele's case, was Mr Hedley's disclosure of confidential information about other tenderers and his suggestions that he was willing to accept a bribe in order to ensure that Mr Emanuele's company was the successful tenderer. In engaging in that conduct, if he did, Mr Hedley plainly was acting in derogation of his duty to his employer; he was acting without the authority of the Commonwealth. Accordingly, there is no basis upon which it can be argued that the Commonwealth would be vicariously liable for any misfeasance in public office that Mr Hedley may have committed. It is not necessary to consider the Commonwealth's submission that this claim, also, is covered by the rule in Weldon v Neal, as against it; it is misconceived and would have to be dismissed even if it had been brought within time. In relation to Mr Hedley's personal liability, it seems not to be an answer to say Mr Hedley acted outside his authority to his employer in intimating corruptibility. A public officer is not normally authorised knowingly to exceed the powers of his or her office or to abuse those powers by using them for an improper purpose such as the infliction of harm on a person. But these are the very situations with which the tort is concerned. The allegations made by Mr Emanuele are sufficient to support a case that Mr Hedley desired to cause injury to Mr Emanuele, at least in the period between the alleged Fabrizioni conversation on 13 November and Mr Emanuele's arrest on 28 November. However, once again, this cause of action necessarily contains the claim that Mr Emanuele committed a criminal act, as a result of which damage ensued. For the reasons expressed in relation to intentional infliction of economic harm, this cause of action must also fail on legal grounds.

Abuse of process As is submitted by counsel for Mr Emanuele, the essence of the tort of abuse of process is the use of legal process in order to accomplish an extraneous purpose. In Spautz v Gibbs (1990) 21 NSWLR 230 at 270-280, Priestley JA extensively discussed the nature and origin of the tort. It is sufficient to reproduce the description in Prosser and Keeton on the Law of Torts (5th ed) adopted by his Honour: "Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. Consequently in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favour, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause." Prosser and Keeton's description is consistent with the explanation of the tort given by Mason CJ, Dawson J, Toohey J and McHugh J in Williams v Spautz (1992) 174 CLR 509. At 523 they said: "Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers." Referring to earlier High Court decisions, their Honours said "... this Court has regarded the purpose of the party instituting the proceedings as of crucial importance". Paragraphs 93 to 117 of the Amended Statement of Claim relate to the claim of abuse of process against Mr Hedley. They make clear that the relevant process was the criminal prosecution of Mr Emanuele. It is said Mr Hedley used that process "in order to accomplish a purpose other than that for which it was designed" and, as a result, caused damage to the plaintiff. Despite repetition of numerous other allegations extraneous to this cause of action, the pleading does not identify the alleged improper purpose. Nor does it deal with the problem that Mr Hedley was not the prosecutor in the criminal proceeding. However, in his submissions to us, counsel for Mr Emanuele repairs these omissions. He submits the relevant ulterior purpose was "Hedley's preconceived, deliberate and deceitful plan to have Emanuele arrested and charged with a criminal offence so as to immediately disqualify Emanuele and his companies from the tender process". In relation to the second point, he repeats submissions made in relation to malicious prosecution; a person may be liable, although not the actual prosecutor, if he or she was the instigator of the prosecution. These same submissions were put to Higgins J. He rejected them both. We prefer not to venture into the baffling matter of Mr Hedley's thinking in the period leading up to the payment of the bribe and Mr Emanuele's arrest; it seems clear that, whatever be the position of informants in malicious prosecution cases, an action for abuse of process is available only against the party who actually instituted the proceedings: see Williams v Spautz in the passage quoted above and at 524 and 526. This is logical because the essence of the tort is that the proceeding was instituted for an improper purpose. If the person who actually instituted the proceeding had a proper purpose, the claim of abuse of process must fail irrespective of the motives and conduct of people who influenced the decision to institute the proceeding. No doubt a person may act through a servant or agent in instituting a proceeding, in which case the purpose of the principal will be the relevant purpose. But there is no suggestion that Commander Dau, a senior member of the Australian Federal Police, acted as Mr Hedley's servant or agent in laying an information against Mr Emanuele. If there was a basis on which Mr Hedley might be held liable for abuse of process, it is arguable the Commonwealth would be vicariously liable for his action. However, any action against the Commonwealth would seem to encounter the principle in Weldon v Neal. The plaintiffs' case in relation to abuse of process is that they suffered damage from the institution of the prosecution, and consequent arrest of Mr Emanuele and disqualification of the companies' tenders. All those events occurred on 28 November 1985. So the cause of action would have been complete that day. But there was no claim against the Commonwealth until 1996.

Malicious prosecution The malicious prosecution claim is raised in action SC994 of 1996. In relation to that claim, there is no problem about time. As it is an element of the tort of malicious prosecution that the prosecution terminated in the plaintiff's favour, the cause of action is not complete until termination. The prosecution of Mr Emanuele did not terminate until the decision of the previous Full Court on 4 December 1995. Action SC994 of 1996 was commenced exactly twelve months after that date. In his reasons for decision on the summary judgment application, Higgins J quoted and applied the description of the tort of malicious prosecution that is contained in Halsbury's Laws of England (4th ed, vol 45, para 1340): "A malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. To be actionable as a tort the process must have been without reasonable and probable cause, must have been instituted or carried on maliciously and must have terminated in the plaintiff's favour. The plaintiff must also prove damage." In his submissions to us, counsel for Mr Emanuele refers to Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 in which the High Court held it was not essential that the person sued for malicious prosecution had been the formal prosecutor in the criminal proceeding. Dixon J said at 379: "It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority ... But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible ... Further, the Privy Council has said in a judgment delivered by Lord Dunedin:- 'In any country where, as in India, prosecution is not private an action for malicious prosecution in the most literal sense of the word cannot be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. If that is done and trouble caused an action will lie.' Their Lordships, however, held in the case before them that, as the information supplied to the police was ample cause for the initiation of prosecution proceedings, the plaintiff must, in order to succeed in his action, go the whole way of showing that it was false to the defendant's knowledge, (Balbhaddar Singh v Badri Sah (1926) The Times, 17th March, p.5, a case containing dicta apparently inconsistent with the decision of this Court in Davis v. Gell (1924) 35 CLR 275). The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him." In Martin v Watson [1996] 1 AC 74 the House of Lords followed Brain in holding liable a person who maliciously gave false information to the police, as a result of which the police charged the plaintiff. Lord Keith of Kinkel, with whom the other members of the House agreed, said at 86-87: "Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant." Having regard to the fact that this is an application for summary judgment, it should be assumed for present purposes that Mr Emanuele could establish at trial that Mr Hedley was actuated by malice towards him. But could it be said that Mr Hedley's report to the police that Mr Emanuele had offered him a bribe was false information? Surely not; on Mr Emanuele's own case that is exactly what he had done. This point overlaps the requirement of absence of reasonable and probable cause. On Mr Emanuele's own case, there was a reasonable and probable cause for the prosecution; he had committed the criminal action charged against him. It is true he did so under circumstances that amounted to entrapment, so that public policy required exclusion of the evidence necessary to establish his guilt. But that did not affect the fact that Mr Emanuele carried out an act that constituted the offence for which he was prosecuted. A finding of absence of reasonable and probable cause is therefore not open. We note that counsel for Mr Emanuele submits that, if Mr Hedley was actuated by malice in relation to his client, "it is impossible to conclude that Hedley had reasonable and probable cause to prosecute or cause the prosecution". He says that "if Hedley was a cause of the prosecution and was actuated by malice, he necessarily lacked belief in reasonable and probable cause". This is fallacious. In Brain Dixon J spoke of a prosecutor acting "maliciously and without reasonable and probable cause". The point, of course, is that a person may be actuated by malice in performing an act but nonetheless have reasonable and probable cause for doing so. The claim of malicious prosecution, made in action SC994 of 1996, must fail, on legal grounds. Orders Order 17 rule 1 of the Rules of the Australian Capital Territory Supreme Court applies to both the actions brought by Mr Emanuele. In saying this, we bear in mind the principles governing summary judgment applications. However, on the plaintiffs' own case, both actions are "hopeless", to use the language of Barton J in Bayne v Baillieu. Our reasons are more confined than those of Higgins J; nevertheless we are of the opinion that his Honour acted correctly in exercising the power given to him by Order 17 rule 1. The appeals should be dismissed with costs. I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 19 June 1998 Counsel for the Appellant: R Sallis

Solicitors for the Appellant: Wakefields

Counsel for the First Respondent: A J Meagher SC and A S Bell

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second to Eleventh Respondents: J S Hilton SC

Solicitor for the Second to Eleventh Respondents: Australian Government Solicitor Date of Hearing: 28 October 1997

Written submissions filed: March, April and May 1998

At a glance

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Cases Cited (17)

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