Misfeasance in Public Office
2 As Macfarlan JA indicates the critical issue to be determined in the present proceedings, with respect to the tort of misfeasance in a public office, is whether either the solicitor or a firm of solicitors acting on behalf of the Minister in legal proceedings occupies a "public office" within the meaning of the tort.
3 The concept of "public office" or "public officer" appears in various legal contexts, both statutory and at common law. (See the summary of the wide range of case law by Byrne J in R v McCann [1998] 2 Qd R 56 at 67-74.) There is no authoritative statement of a test for determining what constitutes a public officer for purposes of the tort of misfeasance. Nor is one needed. In almost all cases the answer will be obvious. (See Society of Lloyd's v Henderson and Others [2007] EWCA Civ 930; (2008) 1 WLR 2255 at [23]. The most detailed consideration of Australian authorities is T Cockburn and M Thomas "Personal liability of public officers in the tort of misfeasance in public office" (2001) Torts Law Journal 80, 245.)
4 Where there is any doubt about whether a particular person occupies a "public office" for purpose of the tort, it will ordinarily be enough to approach the matter on the basis that the tort is "concerned with" the "misuse" or "abuse" of public power (Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 at [37]) or that the tort is "concerned with performance of public duties" (Sanders v Snell at [39]). There is no relevant difference, as these citations from the joint judgment in Sanders v Snell indicate, between authorities which use the language of "duty" and those which use the language of "power". The formulation "abuses his office" is to be found in the foundational authority Henly v The Mayor and Burgesses of Lyme (1828) 5 Bing 91 at 107; (1828) 130 ER 995 at 1001.
5 As Macfarlan JA shows, the joint judgment of the Victorian Court of Appeal in Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 does suggest that the identification of a relevant power attached to a public office is an "essential element of the tort". (See e.g. at [53] and [61].) Nevertheless, their Honours also discuss, without criticism, other cases which indicate that the existence of a public duty, and other incidents of a particular office, may appropriately be considered. (See e.g. at [50]-[52].)
6 I do not understand their Honours to lay down a test of universal application for determining when a position is a public office for purposes of the tort. The identification of a power to act, which has or has not been exercised, is a necessary step in determining whether the conduct complained of occurred in purported performance of the functions of a public office. The relevant consideration is the link.
7 As Lord Bridge put it in Calveley v Chief Constable of Merseyside [1989] AC 1228 at 1240:
" … the tort of misfeasance in public office … must … involve an act done in the exercise or purported exercise by the police officer of some power or authority with which he is clothed by virtue of the office he holds … ."
8 Furthermore, as the Full Federal Court put it: "the impugned act must have involved the exercise of power as a public officer." (Emphasis added: Sanders v Snell (No 2) [2003] FCAFC 150; (2003) 130 FCR 149 at 172 per Black CJ, French and Von Doussa JJ.)
9 This element of the tort was the second element distilled by the Full Federal Court from the judgment of Lord Steyn in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 191. However, the first, and quite distinct element, is that "the defendant must be a public officer". (Three Rivers supra at 191; Sanders v Snell (No 2) supra at 174; Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307 at 370.) That is the issue in the present case.
10 Macfarlan JA states that this Court is bound to follow the decision in Cannon unless it is of the view that it is clearly wrong. I agree with Macfarlan JA that Cannon is not distinguishable.
11 Smart AJ, at first instance, (Noori v Leerdam [2008] NSWSC 515) relied on the analysis of the cases by the Court of Appeal of the Supreme Court of Western Australia in Neilson v City of Swan [2006] WASCA 94; (2006) 147 LGERA 136 at [34]-[38], being the judgment of Buss JA with whom Wheeler and Pullin JJA agreed. That case is of little assistance as there was no issue that the respondent local government council, and its relevant officers, were holders of a public office for purposes of the tort. It was common ground that they were. (See at [38].) The respect in which the judgment in Neilson, based on the observations of Brennan J in Mengel supra at 357, may be said to qualify some of the reasoning in earlier authority, particularly in Tampion v Anderson [1973] VR 715, does not arise in the present case, as Macfarlan JA shows.
12 In Cannon the Court said that the Director of Public Prosecutions and a Prosecutor:
"[61] … are not invested with any relevant powers in respect of the conduct of a prosecution. Whatever powers may be said to attach to the office of the director, for example, when appearing in court to prosecute at a trial, he or she does not thereby exercise any relevant power but, rather, performs a function of the office, that being to represent the Crown at a criminal trial."
13 Similarly, in the present case, the firm of solicitors and the individual solicitor retained to represent the Minister did no more than 'perform a function … that being to represent' the Minister in the proceedings before the Tribunal.
14 On the authority of Cannon, contrary to one of the submissions of the respondent, it would have made no difference if the Minister had been represented by a solicitor employed by the Government. However, it is not necessary to consider this question. There are English authorities, which suggest that the performance of any function by a public officer may be the basis for liability. (See, e.g. Three Rivers supra at 190-191; Henderson supra at [24]-[25].) It may well be that the rationale of "abuse of power" should extend the tort in that way. However, this issue does not arise in the present case.
15 In answering, or rather failing to adequately answer, the request for particulars, and in the other respects complained of, the appellants were not discharging a public duty, nor were they exercising a public power, nor in any other way did they occupy a public office.
16 In the present case there is no "office" or governmental power of any character. The concept of an "office", in the context of liability for abuse of power, connotes an official position to which continuing functions or duties are assigned. Those duties or functions must be of a "public" nature. It is not sufficient merely to be employed by a public authority for public purposes. (C/f Ex parte Kearney (1917) 17 SR NSW 578.)
17 I know of no authority in which the "position", said to be an "office" for purposes of the tort, was created solely by contract between the executive arm of government and the occupant of the position. Such authority to act as is conferred is not, at least in the case of a legal representative, a conferral of public power to which the concept of "abuse of power" applies.
18 It may well be that a person who is a public officer, acting in pursuance of contractual powers, is acting as a public officer. The tort has been said to extend to both statutory and common law powers. (See Tampion supra at 720.) However, a person whose capacity to act is entirely a creature of contract with the executive arm of government is not, in my opinion, thereby constituted a public officer for purposes of the tort. (See e.g. P D Finn "Public Officers: Some Personal Liabilities" (1977) 51 Australian Law Journal 313 at 314.)
19 The conduct complained of in the present case is not capable of constituting either the exercise of a public power or the discharge of a public duty. Not only is the role entirely contractual, the function performed is not itself a public function. The fact that the function was performed in the context of the performance of a public function by the Tribunal, or on behalf of a person who does perform such functions, does not infect the quite distinct role of a legal representative with the public character of either the Tribunal or of the Minister.
20 The first respondent drew attention to the significance of the executive function being performed by the Tribunal, on appeal from the Minister. His submissions emphasised that the legal representative was the agent of the Minister with respect to the performance of the duty to comply with the direction by the Tribunal to provide particulars and, arguably, with the performance of a broader duty on the part of the Minister to assist the Tribunal, which existed even before such an obligation was inserted into the Administrative Appeals Tribunal Act 1975 (Cth) s 33(1AA).
21 The Minister played no role in the proceedings before this Court and it would be inappropriate to determine whether the Minister owed a public duty of the character for which the respondent contends in the proceedings against the Minister. Assuming there was such a duty, in my opinion, the legal representative held no "office" for purposes of the tort of misfeasance in public office because this role was not, of itself, the performance of a public function, ie, it involved neither the exercise of a public power, nor the discharge of a public duty. The position of the solicitors, or of his firm, could not be characterised as a "public office."
22 Smart AJ did not articulate in his judgment any basis for holding that there was an office to which either the terminology of "discharge of a public duty" or of "exercise of a power" could apply. His Honour's relevant reasoning appears to be encompassed in the following passages (Noori v Leerdam supra):
"[64] A solicitor acting for the Minister in the AAT, conducting the proceedings and seeking to uphold the Minister's or his delegate's decision is not a subordinate functionary. The whole community has an interest in who is given a Protection Visa and is entitled to live amongst them. The community also has an interest in the fairness of the AAT proceedings and its decision - whether there were serious reasons for considering that the applicant was engaged in disentitling conduct. The public has to bear the cost of any resulting detention or deportation, at least in the first instance.
…
[65] … A solicitor acting for the Minister has a measure of independence as to the conduct of the case he is advancing on the Minister's behalf.
…
[71] In the present case the solicitor for the Minister is required to perform important functions in which the public has an interest. See the reasons earlier given, eg in 64 above. Thus it is reasonably arguable that the solicitor is a public officer and that the public duty criterion is an appropriate guide as to whether the position of the Minister's solicitor for the AAT proceedings is a public officer for the purpose of establishing the tort. The VCA assumed that the tort of misfeasance in a public office is concerned with the misuse of public powers which are incidents of the office.
…
[81] …
(1) There is substance in the plaintiff's contention that the role of Mr Leerdam differed substantially from that of prosecutor and that of an employed instructing solicitor or officer in a criminal prosecution, ie, a member of staff. Mr Leerdam was instructed to appear for the Minister in an administrative review, conduct the proceedings on the Minister's behalf and seek to uphold the decision of the Minister including that of his delegate. The decision maker had to comply with s 37 of the AAT Act . That involved providing a statement setting out the findings on material questions of fact and referring to the evidence or other material on which those findings were based. It had to give the reasons for the decision. Also to be supplied were copies of every other document or part of a document that is in the decision maker's possession or under his control and is relevant to the review of the decision by the AAT. Heavy responsibilities attached to Mr Leerdam's position. He had to take steps to protect the confidentiality of the Department's sources of information so far as appropriate, balancing that with the requirements of procedural fairness. In the ordinary course, when an order is made by the AAT for the supply of particulars in a matter of major gravity, the agent or solicitor conducting the proceedings on behalf of the Minister in the AAT would obtain information from the Department's officers and potential witnesses as to the answers to the requests for particulars. The agent or solicitor would then draft or settle the answers. It seems that he did so in the present case. The answers were cast in such broad terms that they did not tell the plaintiff of the case he had to meet. The Full Federal Court held the particulars supplied were insufficient and was critical of the non-supply of meaningful particulars.
(2) It is reasonably arguable that Mr Leerdam was a public officer. Heavy responsibilities attached to the office he occupied in the circumstances of this case. Reliance is placed upon the judgment of Best CJ in Henly and Brennan J in Mengel .
(3) It is reasonably arguable that the impugned conduct of Mr Leerdam concerned the performance of public duties.
… ."
23 With respect to his Honour, it is not sufficient to hold that the solicitor performed important functions that involved a matter of public interest. That does not, in my opinion, give rise to an arguable case that the solicitor or his firm exercised a public function or held a public office, whether determined on the basis of the discharge of a public duty or on the basis of the exercise of a public power.
24 Arguably, by reason of his or her professional position, a solicitor appearing before a Tribunal can be said to have duties to the Tribunal analogous to the duties to the court. However, that is not enough, as three members of the High Court observed when rejecting special leave in Cannon. (See Tahche v Cannon [2003] HCA Trans 524 (12 December 2003).)
25 In any event, it is not appropriate to describe the duties of a solicitor representing a party as "public duties" for the purpose of characterisation of the position held by the solicitor as a "public office". Similarly, the existence of a power, albeit not an express power but a power in the sense of a capacity to act, relevantly with respect to the answer for the particulars etc, does not involve a public power or capacity or authority of any character capable of characterising the position of the person as a "public office".
26 In my opinion, a solicitor acting in proceedings, albeit proceedings concerned with the exercise of a public power or the discharge of a public duty, does not occupy a position within the scope of the tort of misfeasance in public office.
27 This conclusion is, in any event, covered by express authority in Cannon and by the Full Federal Court in Tampion supra at 722, where the court said that the position of counsel assisting a governmental inquiry was "obviously not a public office". Far from being convinced that these decisions were clearly wrong, in the relevant respect, I agree with each.
28 Since writing the above I have read the observations of Allsop P on the misfeasance issue. His Honour expands on a number of the matters to which I have referred. I agree with his Honour's reasons in this respect.