Torts - Miscellaneous torts - Other cases - Misfeasance in a public office.

Northern Territory of Australia v Mengel (1996) 185 CLR 307; Sanders v Snell (1999) 196 CLR 329, followed.

Police - Actions for wrongful arrest, trespass and other wrongs - Liability of Crown or other employer - Whether Police Commissioner vicariously liable - Meaning of "good faith".

Enever v R [1906] HCA 3; (1906) 3 CLR 969, followed.

Judgment Number: [2005] TASSC 90

1 The endorsement on the plaintiffs' writ recites that their claim against the defendant, the State of Tasmania, is for damages suffered as a consequence of a misfeasance of public office by the Commissioner of Police.

2 The defendant has applied for the dismissal of the plaintiffs' action by reason of their statement of claim failing to disclose a reasonable cause of action. The power to make such an order is inherent and is also given express form in the Supreme Court Rules 2000, r259. The principles to be applied are canvassed in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 by Barwick CJ at 128 - 130:

"... the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these 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. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'.

As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 where he says: '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.' Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."

3 The allegations and claims made in the statement of claim are that at the material time:

* the Commissioner of Police was a public officer and was in charge of the Police Internal Investigations Unit;

* the defendant was the employer of the Commissioner of Police and "vicariously liable for his actions namely that he acted with the de facto authority of the ... Defendant";

* on or about 12 August 1999 the plaintiffs made a verbal application to the Internal Investigations Unit for a review of the handling by police of complaints that involved the plaintiffs arising from three separate incidents in 1998;

* "The Defendant through its employee the Commissioner of Police owed a duty of procedural fairness to the Plaintiffs to review the complaints ... (and) ensure that they were investigated to a high degree of integrity without bias or favour";

* "The Defendant breached that duty of procedural fairness in relation to (the) Complaint(s) by demonstrating bias and favour, not supported by the evidence, towards one particular complainant, namely, the Defendant failed to investigate (a number of matters as detailed in the pleading)";

* "The ... Defendant is guilty of Misfeasance in a Public Office in the Internal Investigation of the above complaints in that he:

A Was actuated by an improper purpose, namely failed to follow the rules of Procedural fairness.

B In the purported discharge of his public duties as a police officer was derelict in his duty by failing to approach the incidents / matters with an open mind.

C Acted with reckless indifference, or in the alternative, acted with deliberate Blindness to likelihood that such action would cause injury to the Plaintiffs;

D Caused loss and harm to the Plaintiffs, including a loss to their reputations."

* "The Plaintiffs claim loss and damage as a result";

4 It is extremely difficult to discern what, if anything, the material facts detailed in the statement of claim are capable of establishing. The plaintiffs issued these proceedings in person and did not engage their current solicitors until shortly prior to this hearing. For present purposes, I assume that the material facts detailed by the plaintiffs in their statement of claim are sufficient to warrant a finding that the Commissioner deliberately did not accord the plaintiffs procedural fairness in his review of the complaints, that he did so with reckless indifference to the likelihood that this would cause them harm, and this did cause them harm.

5 The precise limits of the tort of misfeasance in public office are undefined; Tampion v Anderson [1973] VicRp 70; [1973] VR 715 at 720, Northern Territory of Australia v Mengel (1996) 185 CLR 307 at 345 and Sanders v Snell (1999) 196 CLR 329 at 346. Nevertheless, a number of elements of the tort are far from inchoate. The tort is concerned with the performance of public duties, Sanders v Snell (supra) at 345. The entity who commits the tort must be a public officer who owes duties to the public as to how the office shall be exercised and the claimant must be a member of the public to whom the holder of the office owed a duty not to commit the subject matter of complaint. Putting aside the question of whether the Commissioner owed a duty to the plaintiffs in the instant case, it is clear that speaking generally the Commissioner was a public officer who had been appointed to discharge a public duty, that is, control and superintend the police force, Police Regulation Act 1898, s8. See the definition of "public officer" in the Supreme Court Civil Procedure Act 1932, s3, and as to the common law meaning of that term, see Henly v The Mayor of Lyme [1828] EngR 701; (1828) 5 Bing 91 at 107.

6 In Tampion v Anderson (supra), Smith, Pape and Crockett JJ at 720 said:

"Little attention has in modern times been directed to the tort of misfeasance in a public office, but interest in it has recently been revived by reason of concern regarding the inadequacy of the remedies usually resorted to by the citizen injuriously affected by administrative action: see 'Damages as a Remedy in Administrative Law', B C Gould, 5 NZULR, p 105. The precise limits of the tort have yet to be defined but certain things are clear. Employment with the Crown is not necessarily a public office for this purpose. The office must be one the holder of which owes duties to members of the public as to how the office shall be exercised. The action has been held to lie in respect of an act done in purported exercise of statutory or common law powers incident to such an office where those powers are knowingly exceeded: cf Farrington v Thomson and Bridgland, [1959] VicRp 49; [1959] VR 286; [1959] ALR 695, and authorities there cited. But to be able to sustain an action upon this basis a plaintiff plainly must not only show damage from the abuse; he must also show that he was the member of the public, or one of the members of the public, to whom the holder of the office owed a duty not to commit the particular abuse complained of."

This passage was cited in Pemberton v The Attorney-General [1978] Tas SR 1 by Neasey J at 12 and Chambers J at 26. What then is the duty that the Commissioner is alleged to have owed to the plaintiffs, which he is alleged to have breached? I infer from the statement of claim that the plaintiffs having made a verbal application to the Internal Investigations Unit of the police force for a review of the complaints in question, it is alleged that thereupon the Commissioner owed the plaintiffs a duty to carry out that review and to accord the plaintiffs procedural fairness in doing so.

7 Counsel for the plaintiffs submits that the source of the Commissioner's duty to the plaintiffs was the Police Regulation Act, s29A, which is contained in the Act, PtII. That Part is relevantly as follows:

29 The Governor may make regulations for the government of the police force with respect to all matters necessary for carrying into effect the several objects of this Act ... .

Commissioner to review reports of disciplinary offences: Notice to be given

29A (1) The Commissioner shall review every report and any other document bearing on the matter of a report from which it appears a police officer or cadet has committed or is committing a disciplinary offence.

(2) Where the Commissioner, acting under subsection (1), believes on reasonable grounds that a police officer or cadet has committed or is committing a disciplinary offence, he shall cause a notice to be served on that person specifying the offence that he believes has been or is being committed and informing that person that he may -

(a) admit in writing the commission of the offence so specified or of any other disciplinary offence;

(b) deny in writing the commission of the offence so specified; or

(c) elect to have that offence determined on complaint before a magistrate -

and that, if he admits under this section the commission of a disciplinary offence, or (in the case of a denial under this section) if the Commissioner after due inquiry is satisfied that the person has committed a disciplinary offence, the Commissioner may impose on him, in respect thereof, a penalty under Part III.

Police officer, &c, may admit offence or elect trial by magistrate

29B Within 14 days of the service on him of a notice under section 29A, a police officer or cadet shall submit a written submission in accordance with paragraph (a) of subsection (2) of that section, or a written denial in accordance with paragraph (b) of that subsection, or make an election in accordance with paragraph (c) of that subsection.

Police officer, &c., admitting disciplinary offence entitled to be heard

29C Where a police officer or cadet makes an admission under section 29A(2)(a), he may for the purpose of making an explanation or in relation to any penalty that may be imposed by the Commissioner -

When disciplinary offence to be determined on complaint before a magistrate

29D Where a police officer or cadet on whom a notice under section 29A is served -

(a) elects, within the period specified in section 29B, to have the offence specified in the notice determined on complaint before a magistrate; or

(b) has, at the expiration of the period specified in section 29B, failed or refused to make an admission or a denial or such an election as provided by that section -

the offence shall be determined on complaint before a magistrate in accordance with the Justices Act 1959."

8 Pursuant to s29A(1), the Commissioner was required to review every report and document from which it appeared a police officer or cadet had committed a disciplinary offence. The material facts pleaded in the statement of claim contain no express claim that the plaintiffs' verbal request for a review of the complaints in question related to reports or documents from which it appeared that a police officer or cadet had committed a disciplinary offence and I am dubious that this can be inferred. In any event, I am not satisfied that in dealing with such a request the Commissioner owed the complainants a duty of procedural fairness. The question whether a duty to afford procedural fairness to anyone arises from a particular statutory provision is to be determined from a consideration of the relevant provision, the enactment in which it is contained and the common law, Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550, Gibbs CJ at 560 - 566; Mason J at 576 - 577 and 584; and Brennan J at 604 and 611. In terms of considerations of natural justice, it is patent that the sole focus of ss29A, 29B, 29C and 29D is on ensuring that procedural fairness is afforded to the police officer or cadet who appears to have committed a disciplinary offence. No reference whatsoever is made to the person whose complaint raises the possibility that a disciplinary offence has been committed. Even in legislation where disciplinary provisions recognise the role of a complainant, it has been held that no duty of care is owed to the complainant to properly investigate the complaint, Mentyn v Law Society of Tasmania (No 2) [2004] TASSC 127 and Trustrum v Law Society of Tasmania & Ors [2005] TASSC 20. Similarly it may be said that the fact that a complaint is reviewed by the Commissioner for the purposes of s29A(1) provides no basis for imposing on the Commissioner a duty to afford the person who requested the review procedural fairness in the conduct of the review. The sole concern of the relevant provisions is the procedure to be followed in dealing with the police officer or cadet who is believed to have committed a disciplinary offence. There is no suggestion in the provisions that the complainant is to be afforded any right or entitlement in relation to the manner in which the complaint is handled.

9 In order to address further issues that have been raised, I proceed on the basis that with reference to the plaintiffs' request for a review, contrary to the above, the Commissioner breached a duty owed to the plaintiffs by failing to accord them procedural fairness. The tort of misfeasance in public office 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 acted in excess of his or her power, Northern Territory of Australia v Mengel (supra) at 345 and Sanders v Snell (supra) at 346 - 347. For the tort to be established on the basis of the breach upon which the plaintiffs rely, they must in addition prove that the breach was calculated in the ordinary course to cause harm, or was done with reckless indifference to the harm that was likely to ensue, Northern Territory of Australia v Mengel (supra) at 347 and Sanders v Snell (supra) at 345. In Northern Territory of Australia v Mengel (supra), Brennan J addressed these further requirements of the tort in the context of its mental element when he said, at 357:

"... the mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce. The state of mind relates to the character of the conduct in which the public officer is engaged - whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury. ... 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. If the impugned conduct then causes injury, the cause of action is complete."

10 Counsel for the plaintiffs put their claim as one based on an invalid exercise of power with reckless indifference to the valid performance of the power and damage being suffered in consequence. Accepting that this formulation of the plaintiffs' claim is encompassed by one of the pathways to establishing liability identified by Brennan J, it should be borne in mind that whatever pathway is pursued by the plaintiffs, the conduct of the Commissioner upon which liability is established must be "inconsistent with an honest attempt by a public officer to perform the functions of the office". This is of significance, as the plaintiffs rely on the Police Regulation Act, s52, to bring their action against the defendant. That provision has been replaced by the Police Service Act 2003, s84, which for relevant purposes is in the same terms. At the time in question, the Police Regulation Act, s52, provided:

52 (1) A police officer shall not incur any civil liability for an act or omission done or made in good faith in the exercise or discharge, or purported exercise or discharge, of any powers, functions, duties, or responsibilities conferred or imposed upon him by any provision of this or any other Act (whenever enacted) or by law.

(2) A liability that would, but for subsection (1), lie against a police officer shall lie against the Crown."

11 The indemnity provided to the Commissioner by s52(1) is conditional upon his liability being for an act or omission done or made "in good faith" in the exercise, or purported exercise, of his responsibilities. Whilst the words "in good faith" are often used in statutes and rarely defined, they are almost invariably construed as meaning honestly. See, for example, Central Estates (Belgravia) Ltd v Woolgar [1971] 3 All ER 647, Denning MR at 649, Phillimore LJ at 650 and Megaw LJ at 651. In some instances good faith has been construed as requiring more than honesty, Mid Density Developments Pty Ltd v Rockdale Municipal Council [1993] FCA 408; (1993) 44 FCR 290 at 298 - 300 and Barrett v State of South Australia (1994) 63 SASR 208. I am not aware of any instance where it has been held that a requirement of good faith was satisfied by less than honest behaviour. I have no hesitation in concluding that within s52 the words "good faith", at the very least, required that the act or omission in question be done or made honestly. However, as explained in par10, for the plaintiffs to establish liability against the Commissioner for the tort of misfeasance in public office, they must prove that his conduct was otherwise than an honest attempt to perform the functions of his office. Such conduct would not be in good faith for the purposes of s52, just as conduct relied upon to found an action for deceit or malicious prosecution is not in good faith so as to invoke the Public Authorities Act 1893 (UK), see Halsbury's Laws of England, 2nd ed, vol 126, par616.

12 Counsel for the plaintiffs submits that if they cannot rely on s52, they can in any event sue the defendant on the basis that the defendant is vicariously liable for the actions of its employee, the Commissioner. This argument falls foul of the law as established by the High Court in Enever v R [1906] HCA 3; (1906) 3 CLR 969, a case of a policeman who admitted making a wrongful arrest in the exercise of his statutory authority. The plaintiff sued the Crown under the Crown Redress Act 1891, which provided that the Crown could be sued for an actionable wrong in respect of "any act or omission, neglect or default of any officer, agent or servant of the Government of Tasmania". The Court held that a police officer is not an agent or servant of the body appointing him and the responsibility for his acts does not extend to that body, the officer himself being responsible for unjustifiable acts done in the intended exercise of his lawful authority. Notwithstanding criticism of this decision, it has become a fixed part of the common law of Australia. With reference to it, in Kubicki v The State of South Australia (1987) 46 SASR 282, Jacobs J said at 285 - 286:

"The relevant common law principles which appear to have been first adopted by the High Court in Enever v The King (supra) was later expressed by Dixon J (as he then was) in Field v Nott [1939] HCA 41; (1939) 62 CLR 660 at p 675 as follows:

'When a public officer, although a servant of the Crown, is executing an independent duty which the law casts upon him, the Crown is not liable for the wrongful acts he may commit in the course of his execution. As the law charges him with a discretion and responsibility which rests upon him in virtue of his office or of some designation under the law, he alone is liable for any breach of duty.'

A few years later in Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94 at p 114 Dixon J cited the decision of the Judicial Committee in Fowles v Eastern and Australian Steamship Co Ltd (1916) 2 AC 556 as one of the authorities which establishes or exemplifies

'the doctrine that any public officer whom the law, charges with a discretion and responsibility in the execution of an independent legal duty is alone responsible for tortious acts which he may commit in the course of his office and that for such acts the government or body which he serves or which appointed him incurs no vicarious liability'.

In the recent case of Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) Aust Torts Reports 80-021; (1986) 60 ALJR 480 the High Court in a majority decision (Gibbs CJ, Wilson and Dawson JJ, Brennan and Deane JJ contra) following Fowles v Eastern and Australian Steamship Co Ltd applied the doctrine, and Gibbs CJ had this to say:

'The doctrine to which Sir Owen Dixon referred in that passage was first laid down in Enever v The King (1906) 3 CLR :969, which followed Tobin v The Queen [1864] EngR 21; (1864) 16 CB (NS) 310 (143 ER 1148) and Stanbury v Exeter Corporation (1905) 2 KB 838. It has been criticised by textwriters (see Fleming, The Law of Torts, 6th ed (1983) at p 346 and Atiyah, Vicarious Liability in the Law of Torts (1967), at pp 75-78), and has been abrogated by statute in some jurisdictions. However, it is firmly established as part of the common law of Australia: other cases in which it has been applied include Beaume v The Commonwealth [1906] HCA 92; (1906) 4 CLR 97 and Irvin v Whitrod (No 2) (1978) Qd R 271.'"

13 Whilst the decision in Enever v R (supra) has been ameliorated in Tasmania insofar as it applies to police officers by the Police Regulation Act, s52, which section was inserted in that Act in 1986 and more recently by the Police Service Act, s84, the extent of the amelioration is not sufficient to benefit the plaintiffs. These provisions do not enable the plaintiffs to establish liability against the defendant in respect of the tort of misfeasance in public office committed by a police officer. The plaintiffs' action against the defendant for this tort must fail.

14 The plaintiffs would circumvent the "good faith" obstacle to establishing liability against the defendant if the material facts pleaded in their statement of claim provide a basis for a cause of action referable to the Commissioner that does not involve lack of honesty on his part. No doubt with this in mind, counsel for the plaintiffs submits that the material facts pleaded found a cause of action for damages for the Commissioner's failure to accord the plaintiffs procedural fairness in the performance of the requested review. If such a cause of action existed, I expect that it would be encompassed by the plaintiffs' pleadings. Counsel for the plaintiffs acknowledges that her assertion that such a cause of action exists is novel. She, in substance, contends that a new cause of action of this nature should be recognised as the ambit and scope of existing causes of action is not closed and new causes of action may evolve. I am totally unpersuaded as to this. A person aggrieved by a denial of procedural fairness may seek redress by way of prerogative writ or under the Judicial Review Act 2000. Such a grievance sounds in administrative law or may be a ground of appeal, it is not a basis for an order for damages in tort. Whilst the authorities allow that the ambit and scope of existing causes of action is not closed, they give no indication of a readiness to recognise a new tort founded on a denial of procedural fairness. An illustration of the reluctance to recognise new causes of action is the cautious approach taken by the High Court to the still-emerging tort of invasion of privacy in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001 - 2002) 208 CLR 199. An example of confining, rather than expanding, a cause of action is Sullivan v Moody (2001) 207 CLR 562, where the High Court, in substance, held that those involved in investigating and reporting upon allegations of sexual abuse could not be subject to a cause of action that involved a legal duty to take care to protect persons who were suspected of being the sources of harm. Similarly, the House of Lords has recently confirmed that police officers do not owe victims of, and witnesses to, a crime any general duty of care sounding in tort, Brooks v Metropolitan Police Commissioner & Ors [2005] UKHL 24; [2005] 2 All ER 489. In Northern Territory of Australia v Mengel (supra), the High Court put to an end a cause of action that had developed in the 1960s by holding that the principles stated in Beaudesert Shire Council v Smith [1966] HCA 49; (1966) 120 CLR 145 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, is unsound and should not be followed. In the same case, at 347, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ 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."

In circumstances where the tort of misfeasance in public office should be more closely defined, there is no occasion for postulating a new tort that would in a sense widen that liability insofar as it relates to want of procedural fairness. A decision relating to the administration of criminal justice, including a decision relating to the investigation or prosecution of persons for offences is exempted from the provisions of the Judicial Review Act. It would be inconsistent with that statutory exemption to open the way to such a decision being the subject of an action in tort claiming damages on the basis that the decision was made without according an interested person procedural fairness.

15 There is no prospect of the plaintiffs successfully suing the defendant on the basis of their statement of claim. Their action is dismissed.