Leinenga & Anor v Logan City Council

TORT - MISFEASANCE IN PUBLIC OFFICE - elements of the tort - where plaintiffs plead that each of several acts of officers of the local authority supports a claim for damages of misfeasance in public office - whether plaintiffs can rely on the aggregation of the states of mind of the various officers for each of the impugned acts - where plaintiffs must plead the facts relied on to allege that the relevant officer had the requisite state of mind at the time of doing the impugned act - where plaintiffs must plead the facts from which it may be inferred that the relevant officer did the impugned act with reckless indifference as to the likely injury, loss or damage that might porseeably be suffered by the plaintiffs - where damages alledged to have been suffered must be linked to the relevant act of misfeasance

TORT - NEGLIGENCE - whether formulation of the duty of care must relate to the alleged acts of negligence - where alleged breaches of the duty of care un-particularised - where damages alleged to have been suffered must be linked to the relevant act of negligence

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - JURISDICTION AND GENERALLY - GENERALLY - where extensive deficiencies in the statement of claim - where statement of claim is the fifth version - where statement of claim struck out and plaintiffs ordered to obtain the leave of the court prior to filing any further statement of claim

Building Act 1975

Australian Commercial Research and Development Ltd v Commonwealth of Australia [1995] 2 Qd R 336

Beach Club Port Douglas v Page [2005] QCA 475; (2005) 143 LGERA 180

Emanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd [2003] QSC 299

Neilson v City of Swan [2006] WASCA 94

Northern Territory v Mengel (1995) 185 CLR 307

Sanders v Snell (1998) 196 CLR 329

Sanders v Snell (No 2) [2003] FCAFC 150; (2003) 130 FCR 149

Smith v Eurobodalla Shire Council [2005] NSWCA 89

Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16; [2001] 2 All ER 513

Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1

DJS Jackson QC and N Andreatidis for the defendant/applicant

Corrs Chambers Westgarth for the defendant/applicant

[1] MULLINS J: This proceeding was commenced by writ of summons filed on 11 January 1999. The statement of claim was filed on 15 July 1999. Both the writ and the statement of claim were served on the Council on 19 July 1999. The Council served a list of documents on the solicitors then acting for the plaintiffs on 13 July 2000. On 14 November 2001 the plaintiffs (by their solicitors) undertook an inspection of the Council's disclosed documents. A reply was filed on 25 February 2003. In February 2004 the Council made a number of complaints about the plaintiffs' failure to plead the statement of claim in accordance with the requirements of the UCPR. The parties consented to the making of an order on 23 April 2004 that the plaintiffs file and serve an amended statement of claim. That was done on 3 June 2004. An amended defence was filed on 3 December 2004.

[2] Further complaints were made by the Council in February 2005 about the amended statement of claim. Ultimately the Council filed an application on 20 April 2005 seeking an order that the amended statement of claim be struck out. That order was made on 23 June 2005. The plaintiffs filed and served the third statement of claim on 27 July 2005. The Council alleged that there were a number of fundamental defects with the third statement of claim. Another strike out application was filed and served. It was adjourned to enable the parties to participate in a mediation that occurred on 6 October 2005, but was unsuccessful. The third statement of claim was struck out, by consent, on 18 October 2005. The fourth statement of claim was filed and served on 28 October 2005. The fifth statement of claim was filed and served on 21 December 2005.

[3] By letter dated 1 February 2006 the Council's solicitors claimed that the fifth statement of claim was also fundamentally defective and foreshadowed the application that was subsequently filed on 11 April 2006 seeking an order that the proceeding be dismissed as an abuse of process or, alternatively, that the fifth statement of claim be struck out pursuant to r 171 of the UCPR. This was the application that was heard on 17 May 2006.

[4] For the purpose of this application the Council has assumed the correctness of facts pleaded in the fifth statement of claim, although it indicated in its submissions that many would be disputed if the matter proceeded to trial. It was apparent, however, from the course of the hearing of the application that the Council does not accept the inferences drawn by the plaintiffs from the facts pleaded in the statement of claim.

[5] The plaintiffs were the registered proprietors of Lots 1 and 2 on RP862713 ("Lot 1 and Lot 2") in the County of Stanley Parish of Mackenzie for which the street addresses are respectively 34A and 34 Lissadell Street, Shailer Park. The plaintiffs were also the registered proprietors of the land described as Lot 190 on RP178001 in the Country of Stanley Parish of Mackenzie situated at 37 Jasmine Crescent, Shailer Park ("37 Jasmine"). These properties are situated within the City of Logan and the plaintiffs had dealings with the Council in relation to the building work undertaken on these properties, particularly in respect of Lot 1 and 37 Jasmine.

[6] The plaintiffs proposed to build a house on Lot 1. On 9 October 1993 the plaintiffs by their builder, KA Norris & Associates Pty Ltd ("Norris"), lodged building application 93/4346 with the Council for approval to build a dwelling on Lot 1. The plaintiffs claim that on 27 November 1993 the Council's senior building surveyor, one Spyrou, informed them that the building application had been approved and that, as a result, the plaintiffs advised Norris to commence site work (before the plaintiffs had received the written approval).

[7] The Council alleges that filling and excavation work were undertaken on Lot 1 by the plaintiffs, whether by themselves or by their contractors, before obtaining the building approval and that in the course of the excavation works an existing stormwater pipe that traversed Lot 1 from the property owned by J&K Walker ("the Walkers") located at 67 Jasmine Crescent (which has a common boundary with Lot 1 and Lot 2) broke. On 7 December 1993 the Council issued a notice to cease work pursuant to s 50 of the Building Act 1975 ("the BA") which the plaintiffs call Notice No 1. The notice did not include a statement in compliance with s 50(4) of the BA about the right of objection under s 57 of the BA.

[8] The plaintiffs then plead in detail about the various meetings and communications between themselves and officers of the Council. Various statements made by the officers of the Council are characterised in the statement of claim as rejections and threats and given sequential numbers.

[9] The Council required a retaining wall to be constructed to support the excavation and fill works undertaken by the plaintiffs on Lot 1 between 27 November and 7 December 1993. It was conveyed by the Council's building surveyor, one Grinter, at a meeting with the male plaintiff on 9 December 1993 that the building approval would not be issued unless the plaintiffs provided drawings detailing such a retaining wall. This communication is called Rejection No 4 by the plaintiffs. On or about 17 December 1993 the plaintiffs caused their engineer to design the requisite retaining wall and submitted the relevant drawings to the Council.

[10] The building approval for Lot 1 (BA 93/4346) was issued by the Council on or about 22 December 2003 which contained a condition that "All retaining walls to be constructed prior to commencement of dwelling." The Council sent a letter to the plaintiffs dated 11 January 1994 advising that the cease work notice given in respect of Lot 1 on 7 December 1993 was lifted.

[11] The plaintiffs then plead in detail about the communications that passed between officers of the Council and them in relation to the plaintiffs' claim that the Walkers were illegally discharging water from their property into Lot 1.

[12] Norris sought a final inspection from the Council on or about 16 May 1994. Norris issued a certificate of practical completion that was countersigned by the plaintiffs on 17 May 1994. A final building inspection was carried out by Nelson, another building surveyor employed by the Council, who refused to give final approval, because he required the plaintiffs' engineer to provide an amended drawing in relation to the dry stack boulder wall that was constructed in lieu of a mortared rock wall. That drawing was provided by the plaintiffs' engineer on 9 June 1994. On a final inspection that was conducted on 29 June 1994, Nelson required the plaintiffs' engineer to detail a spoon drain to be constructed to remove water seeping from the Walkers' property at 67 Jasmine Crescent on the south-west wall. That spoon drain was constructed. On 1 August 1994 Nelson refused to approve the works until the spoon drain was connected to an agricultural pipe and connected to the storm water drain, and supported by engineer's drawings.

[13] According to the plaintiffs, the dwelling on Lot 1 received final approval from the Council on 28 August 1994, although the Council pleads that it gave final approval for the dwelling constructed on Lot 1 and all associated works on or about 22 July 1994.

[14] When the plaintiffs were in the process of selling Lot 1, they learned of a notation that had been made on the Council's file in respect of Lot 1 to the effect that an existing stormwater drainage system collecting stormwater from the Walkers' property at the rear of Lot 1 had been removed by the plaintiffs and that the Council was unable to remove the notation until the drainage system was reinstated to the Council's satisfaction. That notation is characterised by the plaintiffs as Notice No 3.

[15] At the time the plaintiffs were dealing with the Council in relation to the construction of the dwelling on Lot 1, they were also dealing with the Council in relation to the development of 37 Jasmine. On 18 August 1993 the plaintiffs had lodged with the Council building application 93/3519 for approval of the construction of keystone (reinforced earth) retaining walls designed by Geofabrics Australasia Pty Ltd ("Geofabrics") on 37 Jasmine. The building approval was granted by the Council on 18 August 1993. The plaintiffs commenced construction of the keystone walls. On 22 March 1994, when construction of the walls was substantially completed, the Council issued a notice to cease erection in respect of the keystone walls pursuant to s 50 of the BA which the plaintiffs call Notice No 4. The Council alleged that the retaining wall had been constructed in some places at a height of 5m or more where the approved height was 3.1m and had been constructed closer to the site boundaries than had been approved. The plaintiffs allege there was no factual basis for the issuing of Notice No 4. The notice did not include a statement in compliance with s 50(4) of the BA about the right of objection under s 57 of the BA.

[16] The plaintiffs allege that on 22 March 1994 that one Panshin, who was the Council's Deputy Principal Building Surveyor until 28 March 1994 and thereafter the Council's Manager Building Services, requested the plaintiffs' engineer to prepare a drawing of the keystone walls as constructed and provide drawing detail of the western side wall as stage 2 construction. Those drawings were submitted to the Council by the plaintiffs' engineer on 12 April 1994. It was proposed that the stage 2 wall be boulder walls. The plaintiffs claim that the keystone walls were completed in June 1994.

[17] The plaintiffs allege that a continuous period of wet weather in early July 1994 caused subsidence of fill material used in connection with the construction of the keystone walls, endangering structural safety and requiring the construction of the boulder walls in accordance with the drawings that had been lodged for approval on 12 April 1994. This suggests that the plaintiffs will argue that they were relying on s 51 of the BA and whether they were entitled to or not will be an issue to be determined.

[18] Officers of the Council inspected 37 Jasmine on 26 July 1994 and concluded that the plaintiffs had continued to construct the keystone retaining walls in contravention of Notice No 4 and that the boulder walls had been constructed without the Council's approval. By letter dated 27 July 1994 the Council wrote to the plaintiffs advising that it required the plaintiffs to comply with Notice No 4. A site meeting was held on 29 July 1994 involving the plaintiffs' engineer, the male plaintiff, Mr Curtis of Geofabrics and Spyrou. At that meeting the plaintiffs' engineer and Curtis expressed satisfaction with the way the keystone walls had been constructed and Spyrou agreed that if the plaintiffs' engineer provided a supervision certificate that certified to the matters that the Council required, the Council would lift Notice No 4. On 1 and 12 August 1994 the plaintiffs' engineer provided a certificate to the defendant dealing with the matters raised by Spyrou at the meeting on 29 July 1994.

[19] In the meantime, the plaintiffs had lodged with the Council on 25 July 1994 an application to construct a dwelling at 37 Jasmine. By letter dated 4 August 1994 the Council advised the plaintiffs that the proposed dwelling at 37 Jasmine did not comply with the requirements of s 7.5.3 of the town plan which imposed a height restriction of 8.5m above the natural ground level at a point perpendicular to the highest point and informed the plaintiffs that the Council could waive that requirement. The plaintiffs allege, however, that on 4 August 1994 Eagles who was the Council's Director of Planning and Development recommended to the Council that no height relaxation be allowed. On 9 August 1994 the male plaintiff was unsuccessful in attempting to lodge an application with the Council for a relaxation of the height restriction. He was successful, however, on 12 August 1994 in lodging that application. A number of Councillors together with Eagles attended at 37 Jasmine for an inspection on 12 August 1994.

[20] Between July and September 1994 the Council received a number of letters from residents of Shailer Park and Rochedale South expressing concern about the keystone wall and demanding that action be taken by the Council. Letters were received from the Duncans who resided at 39 Jasmine and the Walkers. One letter dated 9 September 1994 had 24 signatories including the Duncans and the Walkers.

[21] Notwithstanding that the plaintiffs' engineer had provided the certification requested by the Council in respect of the keystone walls, on 29 August 1994 the Council retained engineers Cardno & Davies to provide a report in relation to the keystone walls. That report was provided on 5 September 1994. That report raised possible problems with the walls and Cardno & Davies stated that it was unable to endorse the design and construction of the retaining walls.

[22] On 16 September 1994 the Council issued the plaintiffs with a notice under s 52A of the BA (which the plaintiffs call Notice No 5) requiring the plaintiffs to apply for approval to the construction of the keystone retaining walls to a height of 5.5m, on the basis that building approval 93/3519 was in respect of a retaining wall that was to be, at its highest point, no higher than 3.1m and the retaining walls as constructed by the plaintiffs were up to some 5.5m in height. The plaintiffs allege that the issuing of Notice No 5 was in direct conflict with the arrangement that had been reached with Spyrou at the meeting on 29 July 1994.

[23] On 29 September 1994 the Council sent a letter to the plaintiffs explaining its position in relation to the retaining walls and advising that until the matters of concern to the Council had been resolved to the Council's satisfaction, the building application for the proposed dwelling would not be approved by the Council. This is characterised by the plaintiffs as Threat No 6.

[24] On 6 October 1994 the Council issued a notice pursuant to s 54 of the BA requiring the plaintiffs to show cause why a notice under s 52 of the BA should not be issued in relation to the keystone wall which the Council alleged had not been constructed in accordance with the Standard Building Law and a further notice pursuant to s 54 of the BA requiring the plaintiffs to show cause why a notice under s 52 of the BA should not be issued in relation to the keystone wall which the Council alleged was unfit for occupation and in a structural condition prejudicial to the inhabitants of or to property in the neighbourhood.

[25] The Council received a further written report from Cardno & Davies on 7 October 1994 which recommended that the Council should accept the retaining walls as constructed, if Geofabrics certified that the design and construction of the retaining walls complied with recognised standards. The plaintiffs did not become aware of the existence of this report until informed of the fact by Cardno & Davies and did not receive a copy of the report until 26 October 1995.

[26] On 14 October 1994 the Council issued a notice pursuant to s 52A of the BA requiring the plaintiffs to make an application for approval for the construction of the 5.5m high keystone retaining wall and also sent a letter to the plaintiffs requiring them to submit with the application for approval a certificate from an independent engineer about the structural soundness of the keystone retaining wall constructed by the plaintiffs, a report from an independent town planning consultant in relation to the aesthetics of the keystone retaining wall and appropriate plans and modifications.

[27] On 4 November 1994 the plaintiffs met with one Kellar, the Chief Executive Officer of the Council, to discuss the keystone retaining walls. The plaintiffs' engineer sent a letter to the Council on 4 November 1994 responding to the notices issued on 14 October 1994 advising of the engineer's opinion that the walls had been constructed to a satisfactory standard in accordance with the design drawings and providing copies of the letters that had previously been sent to the Council in August 1994 relating to certification of the construction of the walls. Some correspondence then passed between the plaintiffs and the Council about the boulder walls. By letter dated 21 November 1994 the Council conveyed its opinion that the keystone retaining wall, as constructed, was "a significant departure from the approved plan" and therefore required a fresh building application to be submitted and also required a certificate from an independent engineer, as to the structural soundness of the keystone retaining wall.

[28] On 19 December 1994 the Council issued a notice pursuant to s 52 of the BA ("the non-conforming notice") which the plaintiffs call Notice No 9 on the grounds that the plaintiffs had failed to show cause in accordance with the notice issued by the Council in October 1994 and requiring the plaintiffs to secure the excavated fill material deposited on site so as to stabilise the material and repair the retaining walls or support the excavated and fill material to prevent subsidence. On 19 December 1994 the Council also issued a danger notice under s 53 of the BA in respect of the keystone retaining walls which the plaintiffs call Notice No 10.

[29] On 23 December 1994 solicitors then acting on behalf of the plaintiffs responded to the notices issued by the Council on 19 December 1994 advising of the plaintiffs' position on compliance with design and the structural stability of the walls and requesting advice from the Council on the full extent of the work proposed by the Principal Building Surveyor to bring the structure into conformity with the Standard Building Law. As at 6 January 1995 no reply had been received by the plaintiffs to their solicitors' letter.

[30] On 6 January 1995 the Council filed complaints and summonses against the plaintiffs in the Beenleigh Magistrates Court alleging that the plaintiffs had failed to comply with s 64C(1) of the BA for failing to obtain building approval in respect of the retaining wall on the basis that it was, at places, in excess of 5m in height and for failure to comply with s 52A(2) of the BA for failing to lodge a building application within the time specified in the notice issued pursuant to s 52 of the BA.

[31] On 10 January 1995 the plaintiffs lodged objections with the Building Tribunal ("the Tribunal") in respect of the notices issued by the Council on 19 December 1994.

[32] The hearing before the Tribunal was conducted during the month of February 1995. The Council did not disclose to the Tribunal the report by Cardno & Davies dated 7 October 1994. On 28 March 1995 the Tribunal made findings in favour of the Council. On 6 April 1995 the plaintiffs appealed the decision of the Tribunal to the Building Advisory Committee ("the Committee"). By decision dated 11 May 1995 the Committee varied the December 1994 notice to require the plaintiffs, within 30 days, to perform work to bring the height of the keystone wall to the maximum of 3.1m, as indicated in the approved plan, and ordered that the danger notice be revoked and of no further effect.

[33] On or about 9 June 1995 the Council appealed the Committee's decision to the Planning and Environment Court. The Council filed a notice of withdrawal of its appeal on 30 October 1995. By letter dated 30 October 1995 the Council advised the plaintiffs that it had decided not to continue with the prosecutions against them in the Beenleigh Magistrates Court.

[34] On 6 July 1995 the plaintiffs lodged an objection with the Tribunal against the Council's failure to deal with the building application for approval of the boulder walls which the plaintiffs had lodged with the Council on 21 November 1994 and the Council had not processed while the Council had outstanding issues in respect of the existing building works on 37 Jasmine. The Tribunal deferred determining the plaintiffs' objection on the basis that there was insufficient engineering evidence and that the decision of the Council must await further verification as to the structural adequacy of the boulder walls and the adequacy of support for the dwelling to be constructed on 37 Jasmine. The plaintiffs allege that the Council did not provide the Tribunal with the engineer's structural supervision certificate dated 27 February 1995.

[35] By letter dated 2 November 1995 the Council required the plaintiffs to remove the encroachment onto Lot 189 on RP178001 ("Lot 189") and the encroachment onto Lot 4 on RP185756 ("Lot 4") which comprised fill material (which the plaintiffs call Threat No 8). The parties then engaged in correspondence about whether or not there were such encroachments and the Council's power to make demands in relation to such encroachments.

[36] On 7 November 1995 Pickering forwarded to the Council's solicitors a draft letter of Duncan for comment. On 7 November 1995 Duncan sent a letter to the Criminal Justice Commission ("CJC") which was countersigned by residents at 17, 24, 26 and 28 Tanaldi Street, Shailer Park and made a complaint that the Tribunal had made a ruling against the Council in favour of an illegal retaining wall upon the application of the plaintiffs at 37 Jasmine.

[37] On 24 November 1995 the plaintiffs appealed to the Planning and Environment Court in relation to the question of whether or not the plaintiffs had lodged an application under s 7.5.3(b) of the town plan for relaxation of the height restriction.

[38] On 7 December 1995 the Council issued a number of notices to the plaintiffs. One was a cease work notice pursuant to s 50 of the BA in relation to a 1.5m keystone retaining wall. Another notice was a show cause notice pursuant to s 54 of the BA which was also in relation to a 1.5m keystone retaining wall which the Council alleged was being constructed by the plaintiffs without seeking or obtaining the Council's approval. Another cease work notice pursuant to s 50 of the BA was also issued by the Council in relation to the boulder retaining wall including filling of the area behind the face of the retaining wall without seeking or obtaining the Council's approval. This was accompanied by a show cause notice pursuant to s 54 of the BA in respect of constructing the boulder wall without seeking or obtaining the Council's approval.

[39] On 5 February 1996 the Council refused to approve the plaintiffs' application for the boulder wall.

[40] On 8 February 1996 the Council issued a notice pursuant to s 52 of the BA in relation to the 1.5m high keystone retaining walls requiring the plaintiffs to demolish part of the wall that encroached on Lot 189 and to remove the fill material behind the face of the retaining wall within 750mm of the common boundary, demolish or remove fill material deposited in front of the retaining wall where it encroached onto Lot 4 for a distance of not less than 750mm from the common boundary and to provide an approved drainage system to protect land, buildings and other structures in the neighbourhood in accordance with s 11.1 of the Standard Building Law. The Council also issued a notice on 8 February 1996 pursuant to s 52 of the BA in relation to the boulder wall requiring it to be demolished. On 15 February 1996 the plaintiffs lodged objections with the Tribunal in relation to the refusal of the Council to approve the boulder wall and the notices issued by the Council on 8 February 1996.

[41] In August 1996 the plaintiffs provided the Council with a survey report showing no encroachment of the boulder walls onto Lot 4. The Council sent a letter to the Tribunal on 20 August 1996 setting out its contention that the Tribunal was not the appropriate forum within which to decide the validity of the Council policy adopted on 15 November 1994. There were delays in the Tribunal reaching its decision on the plaintiffs' objections in relation to the Council's actions in respect of the boulder wall on 37 Jasmine. The plaintiffs allege that the Tribunal allowed the plaintiffs' objection in respect of the notices issued in February 1996 and revoked the notices, subject to the conditions referred to in the Tribunal's orders. The Council has set out in paragraphs 98 and 99 of the amended defence its allegation of what the Tribunal determined on 14 April 1997 which was variation of the notices issued in February 1996, subject to a number of conditions. The effect of those conditions were to allow the walls to remain (subject to some building work being carried out to reduce the 1.5m keystone retaining wall to a maximum height of no more than 1m), subject to specified certifications and drainage works. On 14 April 1997 the Tribunal also ordered that the Council approve the boulder wall application on certain conditions addressing encroachments, certification and drainage. The building approval for the boulder walls was issued by the Council on 1 May 1997.

[42] On 23 February 1996 consent orders were made by the Planning and Environment Court in relation to the plaintiffs' house height relaxation application pursuant to which, upon payment of the relevant fee for the application by the plaintiffs, the Council agreed to promptly and properly consider the application. By letter dated 5 March 1996 the Council advised the plaintiffs that it granted the house height application, subject to a number of conditions, including a condition dependent upon the Council's acceptance of the walls. On 12 April 1996 the plaintiffs appealed to the Planning and Environment Court against the condition dealing with retaining walls that was imposed on the dwelling height relaxation.

[43] On 3 February 1997 the Planning and Environment Court allowed the plaintiffs' appeal against the conditions imposed by the Council in granting the dwelling height relaxation, subject to the varied conditions set out in the order.

[44] Paragraphs 19 to 76 (excluding paragraph 46) of the statement of claim relate to Lot 1. Paragraphs 77 to 183 of the statement of claim relate to 37 Jasmine.

[45] The plaintiffs claim damages for misfeasance in public office and/or damages for negligence.

[46] In relation to Lot 1, the plaintiffs identify each act engaged in by the Council or its officers in dealing with the approvals and inspections for and notices relating to Lot 1 which they allege to have been beyond power. The pleading of the allegations relied on to establish the cause of action of misfeasance in public office is found in paragraph 68 of the statement of claim:

"68.1 The plaintiffs repeat and rely upon the allegations of acting beyond power made in paragraphs: 28, 31, 35, 37, 39, 44, 46, 47, 51, 53, 60, 62, 64 and 65 hereof.

68.2 Each of the said Rejections (1-8); Notices (1-3) and Threats (1-4).

68.2.2 was done with reckless indifference to the proper exercise of power under the Act;

68.2.3 was not done in good faith in the honest performance of a public office for the public good;

68.2.4 was done in such a way as to deny the plaintiffs natural justice;

68.2.5 was done with reckless indifference to the likely injury, loss or damage that might foreseeably be suffered by the plaintiffs

68.2.6 was conduct performed in purported exercise of the defendant's powers as a local government.

Particulars of the defendants state of mind

The defendant's maliciousness, reckless indifference and lack of good faith is to be inferred from the defendant's entire course of conduct as pleaded in paragraphs: 21, 25, 26, 27, 28, 30, 31, 32, 33, 35, 37, 39, 40, 42, 44, 46, 47, 49, 51, 53, 54, 57, 60, 62, 64, 65 and 67 hereof.

68.2.7 By reason of the defendant's said conduct the plaintiffs have suffered loss and damage as particularized in paragraph 69 hereof.

68.2.8 In the premises, the said conduct of the defendant constitutes the tort of misfeasance in public office."

[47] In paragraph 69 of the statement of claim the plaintiffs allege that by reason of the Council's misfeasance in public office, construction of the dwelling on Lot 1 was delayed by four months (April to August 1994) which resulted in the plaintiffs losing rental income of $220 per week for 17 weeks ($3,740) and the plaintiffs also claim damages of $9,652 for the cost of constructing a retaining wall on Lot 1 which they allege would not have been constructed, but for the Council's conduct. The plaintiffs also claim the same heads of damages for negligence on the basis that in giving the notices and engaging in the conduct in respect of Lot 1 which is impugned by the plaintiffs, the Council held itself out as possessing the requisite skill to determine what had to be done to comply with the law and that it breached that duty in that it did not exercise any care to ensure that its conduct was performed in accordance with the law.

[48] In relation to 37 Jasmine, the pleading of the allegations relied on to establish the cause of action of misfeasance in public office is found in paragraph 173 of the statement of claim:

"173.1 The plaintiffs repeat and rely upon the allegations of acting beyond power made in paragraphs: 77 to 172 hereof.

173.2 Each of the said Rejections (9-10); Notices (4-12) and Threats (5-9) the opposition to the plaintiffs said Court Actions and the bringing of the defendant's Court Actions:

173.2.1 was done maliciously;

173.2.2 was done with reckless indifference to the proper exercise of power under the Act;

173.2.3 was not done in good faith in the honest performance of a public office for the public good;

173.2.4 was done in such a way as to deny the plaintiffs natural justice;

173.2.5 was done with reckless indifference to the likely injury, loss or damage that might foreseeably be suffered by the plaintiffs

173.2.6 was conduct performed in purported exercise of the defendant's powers as a local government.

Particulars of the defendants state of mind

The defendant's maliciousness, reckless indifference and lack of good faith is to be inferred from the defendant's entire course of conduct as pleaded in paragraphs: 77 to 172 hereof.

173.2.7 By reason of the defendant's said conduct the plaintiffs have suffered injury, loss and damage as particularized in paragraphs 174.3, 174.4 and 182 hereof.

173.2.8 In the premises, the said conduct of the defendant constitutes the tort of misfeasance in public office."

[49] The plaintiffs have not identified in paragraph 173.1 of the statement of claim which of the paragraphs between 77 and 172 contain the allegations that the Council was acting beyond power. As the plaintiffs deal only with the mental element for the acts described in paragraph 173.2 of the statement of claim, I infer that it is only the acts that are referred to in paragraph 173.2 that are the subject of the claim for misfeasance in public office.

[50] In paragraph 174 of the statement of claim the plaintiffs allege that, by reason of the Council's misfeasance in public office arising from its conduct in respect of 37 Jasmine, the female plaintiff suffered the onset of specified medical conditions which prevented her from returning to her profession of teaching.

[51] In paragraphs 175 to 183 of the statement of claim, the plaintiffs plead the allegations relied on to claim damages for negligence in respect of the Council's conduct relating to 37 Jasmine.

[52] There are general allegations of the suffering of loss and incurring of expenses set out in paragraphs 184 to 186 of the statement of claim which appear to relate to all the claims in the statement of claim for damages for misfeasance in public office and negligence. The plaintiffs allege additional damages which are described in paragraph 187 of the statement of claim. The description of the personal injuries suffered particularly by the female plaintiff are expanded on in paragraphs 188 to 190 of the statement of claim. The allegations of damage in those paragraphs appear to have been subsumed in the calculation of damages set out in paragraph 186 of the statement of claim totalling $1,245,371. The plaintiffs also claim exemplary damages of $300,000.

[53] The Council claims that there are four fundamental defects in the plaintiffs' pleading of the causes of action in misfeasance in public office:

(1) the plaintiffs cannot aggregate states of minds of several people;

(2) there are numerous allegations that the Council acted beyond power, when it is patent that in such respect the Council did have the power to do the thing it did;

(3) the plaintiffs failed to identify in paragraph 100 of the statement of claim who, on behalf of the Council, they allege was motivated to act maliciously to the plaintiffs;

(4) there are a number of instances where the plaintiffs complained of conduct by employees of the Council, but in circumstances where those employees were not exercising or purporting to exercise any power.

[54] The Council also claims that there are four fundamental defects in the plaintiffs' pleading of the causes of action in negligence:

(1) the plaintiffs do not plead any recognised category of negligence in that not a single matter alleged against the Council falls within a category where the Courts have recognised that a duty of care is owed by a local authority;

(2) there is no duty of care owed by litigants to each other;

(3) there is no liability in negligence against a local authority exercising a power in circumstances where the sole irregularity consists of an error as to the extent of power available for such action;

(4) there are a variety of things alleged to have been done by officers, employees or councillors of the Council which patently cannot amount to negligence.

[55] In order to consider whether the Council's complaints about the pleading of the claims for damages for misfeasance in public office have any substance, the elements of the cause of action of misfeasance in public office need to be identified.

[56] In the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ in Northern Territory v Mengel (1995) 185 CLR 307 ("Mengel") misfeasance in public office was described as "...a deliberate tort in the sense 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" (at 345). This was expanded upon in the joint judgment at 347:

"The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.

It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm.

If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power." (footnotes omitted)

[57] Brennan J in Mengel at 357 set out each of the states of mind that is sufficient to prove the mental element of misfeasance in public office:

"I respectfully agree that the mental element is satisfied either by malice (in the sense stated) or by knowledge. That is to say, 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."

[58] Deane J in Mengel at 370-371 also dealt with the different means by which the element of malice required to prove misfeasance in public office could be proved:

"In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff. Such malice will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied." (footnotes omitted)

[59] The majority of the High Court in Sanders v Snell (1998) 196 CLR 329 at 344-345 [38] endorsed what the majority said in Mengel at 347 on what constitutes misfeasance in public office and stated:

"For present purposes it may be accepted that the tort of misfeasance in public office extends to acts by public officers that are beyond power, including acts that are invalid for want of procedural fairness. But to establish that tort, it is not enough to show the knowing commission of an act beyond power and resulting damage." (footnotes omitted)

In that case the High Court ordered a retrial of the claim for misfeasance in public office. The plaintiff was successful on the retrial, but on appeal the Full Court of the Federal Court found that there was no basis on which it could have been concluded that misfeasance in public office was made out: Sanders v Snell (No 2) [2003] FCAFC 150; (2003) 130 FCR 149. The Full Court surveyed the recent authorities on the tort at 172-176 [89] - [100] and emphasised that the essence of the tort is the dishonest abuse of power.

[60] On the hearing of the application Mr Somers of counsel for the plaintiffs relied on the opinions delivered by the House of Lords on 22 March 2001 in Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16; [2001] 2 All ER 513 (to which I will refer as "the second judgment in Three Rivers"). That case is particularly relevant as it dealt with a strike out application in respect of a cause of action for misfeasance in public office. The second judgment in Three Rivers was given after the further hearing of the appeal to the House of Lords in that case which followed the determination by the House of Lords of the requirements for the tort of misfeasance in public office as a question of law in the opinions that were delivered on 18 May 2000 (to which I will refer as "the first judgment in Three Rivers"). The first judgment in Three Rivers is reported as Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1. The second judgment in Three Rivers is also included as part of that report, commencing at 237. The page references that I give in these reasons for the first judgment in Three Rivers and for the second judgment in Three Rivers are taken from the report found in [2003] 2 AC 1.

[61] The first judgment in Three Rivers focused on the elements of the tort of misfeasance in public office. Mengel was followed on the issue of whether recklessness was a sufficient state of mind to ground the tort. In dealing with the category of case that was described as "untargeted malice", Lord Steyn (with whom Lord Hope of Craighead agreed) stated (at 192,193 and 196) that an act performed with subjective reckless indifference as to the illegality of the act was sufficient to establish the element of the tort dealing with the state of mind of the public officer in doing the act. Lord Steyn (at 196) also considered that reckless indifference as to the consequences of the act, in the sense of not caring whether the consequences happen or not, is sufficient in law for that element of the tort that requires the impugned act to be intended to cause harm. Lord Hutton stated at 228:

"I further consider that if the public officer knows that his unlawful conduct will probably injure another person, or is reckless as to that consequence, the plaintiff does not need to show, before liability can arise, some other link or relationship between him and the officer. The requirement of foresight of probable harm to the plaintiff, or recklessness as to such harm, is sufficient to ensure that the tort is confined within reasonable bounds."

[62] In the second judgment in Three Rivers Lord Hope of Craighead revisited the requirements to establish the tort and summarised the essential elements of the tort at 246 [42]:

"First, there must be an unlawful act or omission done or made in the exercise of power by the public officer. Second, as the essence of the tort is an abuse of power, the act or omission must have been done or made with the required mental element. Third, for the same reason, the act or omission must have been done or made in bad faith. Fourth, as to standing, the claimants must demonstrate that they have a sufficient interest to sue the defendant. Fifth, as causation is an essential element of the cause of action, the act or omission must have caused the claimants' loss."

The passages in the judgment of Lord Hope of Craighead at 247 [44]- [46] were particularly relied on by the plaintiffs on the hearing of this application.

[63] After I had reserved my decision in this matter, Mr Somers, with the concurrence of his opponents, helpfully provided me with a copy of the decision of the Court of Appeal of Western Australia on a strike out application in respect of a pleading based on misfeasance in public office in Neilson v City of Swan [2006] WASCA 94 ("Neilson"). The leading judgment in Neilson was given by Buss JA with whom the other members of the court agreed. Buss JA analysed the relevant authorities on misfeasance in public office including Mengel and Three Rivers and concluded at paragraph [75] that the majority in Mengel did not approve "a foreseeability test", because it was sufficient for the purposes of the proceedings in Mengel for the majority to proceed on the basis that liability for misfeasance in public office requires an act which involves a foreseeable risk of harm. It had been observed by Lord Hutton in the first judgment in Three Rivers at 223 that in Mengel the distinction between foresight by the public officer and objective foreseeability of injury was not directly considered. The approach taken by Buss JA at paragraph [78] was:

"It is unnecessary, in this application, to determine whether it is reasonably arguable, in the context of the proceedings which are analogous to a strike-out application, that it is sufficient for a plaintiff who relies on the second form of the tort to establish merely that the plaintiff's loss or damage was reasonably foreseeable (as distinct from establishing that the defendant knew his or her conduct would cause or be likely to cause such loss or damage, or was recklessly indifferent to that consequence)."

That is also the appropriate course to follow in this application in view of the basis on which the majority proceeded in Mengel.

[64] These authorities illustrate that the tort of misfeasance in public office is not easily established. It depends on the impugned act being committed by the public officer with the requisite state of mind both in committing the act and in holding the requisite intention to cause the loss or damage that is alleged to flow from the impugned act. It is a very serious allegation to be made against a person who holds public office. It cannot be made in a broad brush way. It requires particularity in setting out the facts that can, if proven, establish the cause of action.

Proof of the mental element of misfeasance in public office

[65] The plaintiffs have not brought proceedings against the officers of the Council whose conduct is impugned in the statement of claim. The plaintiffs allege in paragraph 7 of the statement of claim that each of the officers of the Council was either acting on behalf of the Council in the course of the duties for which the officer was employed or had the Council's de facto authority to do those things and that the Council is vicariously liable for the actions of each of its officers. As the issue of vicarious liability is clearly arguable, for the purpose of this application it is appropriate to proceed on the basis that the Council would be vicariously liable for the conduct of these officers.

[66] The vice in the statement of claim is that such vicarious liability is for each act of each officer, but the critical allegations about intention of the Council found in paragraphs 68 and 173 of the statement of claim depend on an aggregation of the alleged state of mind of each of the officers for each of the alleged acts committed by them, in order to establish the requisite intent or reckless indifference of the Council in relation to any particular impugned conduct, but the plaintiffs have not alleged any basis in the pleading that would enable such aggregation of the states of mind of each of the officers.

[67] In relation to Lot 1, the Council submits that the plaintiff alleges that the requisite intention is to be ascertained by aggregating the state of mind and knowledge of ten different officers of the Council from 3 November 1993 to 15 September 1995, but there was, generally, no allegation that any particular officer had knowledge of the conduct of any other officer in relation to Lot 1 or that otherwise there was some sharing of knowledge amongst the officers of the Council. It may be that one officer did have knowledge of the acts undertaken by other officers by recourse to the Council's file in relation to Lot 1. It may also be implicit where the impugned conduct of one officer has immediately followed on the act of another officer, that the first officer had knowledge of what the second officer had done. The contact between the plaintiffs' engineer and Grinter after the unsuccessful telephone call with Newell set out in paragraphs 37 to 39 of the statement of claim, is an example of that.

[68] The Council illustrated the deficiency of the manner in which the plaintiffs have pleaded intention in paragraphs 68 and 173 of the statement of claim by reference to the allegation in paragraph 28 of the statement of claim. That conduct in relation to Lot 1 by one officer on 1 December 1993 is alleged to have been done maliciously or with reckless indifference or lack of good faith from the Council's entire course of conduct pleaded in specified paragraphs between paragraphs 21 and 67 of the statement of claim. As the Council submits, it cannot be the case that the state of mind of the relevant officer of the Council on 1 December 1993 can be inferred from the state of mind of himself and other officers of the Council in undertaking other acts over a period up to 21 months after the date on which it was relevant to determine the state of mind of the officer.

[69] The plaintiffs will need to replead the facts relied on to establish the element of intention in relation to each act relied on as misfeasance in public office in relation to Lot 1 and allege with specificity the facts relied on by the plaintiffs to allege that at the time of doing that act the relevant officer did the act with the requisite state of mind.

[70] The same deficiency applies to the pleading of the requisite state of mind of the Council through its relevant officers in respect of each of the allegations about acting beyond power in respect of 37 Jasmine. The plaintiffs allege that the state of mind of the Council is to be ascertained by reference to conduct between 18 August 1993 and 22 September 1997 attributed to 15 different officers and councillors.

[71] Although paragraphs 19 to 77 of the statement of claim are directed at pleading allegations in respect of the Council's conduct with respect to Lot 1, the quantum of damages specifically claimed as a result of the Council's conduct in relation to Lot 1 is $13,392. During submissions counsel for the plaintiffs acknowledged that the plaintiffs' claim against the Council in relation to Lot 1 was minor compared to their claim in relation to 37 Jasmine, but indicated that the plaintiffs were relying on the Council's conduct in relation to Lot 1 to establish the requisite mental element for the claim for misfeasance in public office in relation to the Council's conduct concerning 37 Jasmine. The pleading does not reflect that.

[72] The statement of claim does not address in any particularity whatsoever the other mental element of the tort of misfeasance in public office. All that is pleaded in paragraphs 68.2.5 and 173.2.5 is that each impugned act "was done with reckless indifference to the likely injury, loss or damage that might possibly be suffered by the plaintiffs". The plaintiffs must plead the material facts from which it may be inferred that the relevant officer did the impugned act with the alleged reckless indifference to that consequence: cf Neilson at paragraph [108].

[73] To the extent that the plaintiffs allege that certain acts of the Council were beyond power and it is patent that there is no basis for such allegation, those allegations should be struck out and the plaintiffs not permitted to replead the claim for misfeasance in public office based on those acts.

[74] Paragraph 31 of the statement of claim pleads the issue of Notice No 1. Even on the basis of the allegations in the statement of claim, the plaintiff did not have a written notification of approval of building application 93/4346 at the time the plaintiff instructed Norris to commence site work at Lot 1. To the extent that the plaintiffs did commence excavation and filling works before receiving the written building approval, they had undertaken building work without approval. Even if the plaintiffs can establish oral communications from officers of the Council that the approval had been given, that does not amount to the written approval which is the only form of notification of approval under s 30B(3) of the BA. In order to allege in paragraph 33 of the statement of claim that Notice No 1 was in excess of power granted under the BA, the plaintiffs rely on the fact that Notice No 1 did not comply with s 50(4) of the Act. The issue of Notice No 1 without incorporating the requisite information on the plaintiffs' right of objection meant that the notice was defective and would have precluded the Council from taking action against the plaintiffs in reliance on Notice No 1. The Council had power to issue to the plaintiffs on 7 December 1993 a notice to cease the carrying out of building work that did not have the approval of the Council, provided the Council complied with the requirements of s 50 of the BA. It is arguable that by issuing a notice that did not comply with s 50(4) of the BA that the issue of the Notice No 1 was in excess of the power granted under the Act. If that is the impugned conduct, then the statement of claim should deal with the intent which they allege the Council had when omitting the statement required by s 50 (4) of the BA and any alleged consequences for the plaintiffs of that.

[75] Paragraph 60 of the statement of claim characterises as Rejection No 6 the refusal of Nelson to give final approval to the construction of the works on Lot 1 in May 1994 on the basis that Nelson required the plaintiffs' engineer to provide amended drawings in relation to the dry stack boulder wall that was constructed in lieu of the mortared rock wall. Under s 2.13 of the Standard Building Law the Council was required to obtain amended drawings to reflect changes in construction from the plans as approved. The amended drawings were provided by the plaintiffs and no allegation was made that they were unnecessary. In any case, Nelson was providing information to the plaintiffs as to what was required in order to obtain final approval. Nelson was not purporting to exercise any power in providing that information. The conduct described as Rejection No 6 cannot, as a matter of law, be the subject of a claim of misfeasance in public office.

Acts where employees not exercising any power - Lot 1

[76] Paragraph 28 of the statement of claim characterises as Rejection No 1 the response of building surveyor Newell to an enquiry by the male plaintiff as to the progress of the application for the building approval for Lot 1. Newell advised that the drawings provided by the plaintiffs' engineer were not acceptable due to the mirror reversing of the floor plan and that amended drawing should be submitted to show the house "mirror reversed" on the block. That was a requirement under s 2.4(1)(c) of the Standard Building Bylaw. Newell's advice was not a notification of the Council's decision on an application in conformity with s 30B(3) of the BA and did not purport to be. In fact, according to paragraph 29 of the statement of claim, the plaintiff acted on that advice of Newell and organised for amended drawings to be submitted to the Council. The conduct described as Rejection No 1 cannot, as a matter of law, be the subject of a claim of misfeasance in public office.

[77] Paragraph 35 of the statement of claim characterises as Rejection No 2 the response of Newell to an enquiry made by the female plaintiff on 8 December 1993 about the building approval that he would not accept the drawings and certificate provided by the plaintiffs' engineer in that he challenged the engineer's contention that the southern boundary did not require a retaining wall. Again, this was not a notification of the Council's decision on an application in conformity with s 30B(3) of the BA and did not purport to be. The conduct described as Rejection No 2 was provision of information by Newell on the difference of opinion between him and the plaintiffs' engineer and cannot, as a matter of law, be the subject of a claim of misfeasance in public office.

[78] Paragraph 37 of the statement of claim characterises as Rejection No 3 the action of Newell in hanging up during a telephone conversation with the plaintiffs' engineer on 8 December 1993 when the plaintiffs' engineer was advising Newell why the southern rock face on Lot 1 did not require retaining. Hanging up during the course of a telephone conversation cannot, as a matter of law, be the subject of a claim of misfeasance in public office.

[79] After that telephone conversation the plaintiffs' engineer arranged for a site meeting with Grinter and Grinter's advice at that site meeting about the Council's requirements before building approval would be issued (Rejection No 4) is set out in paragraph 39 of the statement of claim. It was not a notification of the Council's decision on an application in conformity with s 30B(3) of the BA. The communication described as Rejection No 4 cannot, as a matter of law, be the subject of a claim of misfeasance in public office.

[80] In paragraph 44 of the statement of claim the plaintiffs allege that a building inspector (whom the plaintiffs fail to identify) did not have power to advise Norris that Notice No 1 was still in force (in early January 1994) then that was still the case. It cannot be misfeasance in public office for an officer of the Council to inform a builder of the current status of a notice under s 50 of the BA.

[81] Paragraphs 47, 51 and 53 of the statement of claim contain allegations about statements made by employees to contractors engaged on Lot 1, the builder and the female plaintiff. In each case the relevant officer has made statements and was not exercising or purporting to exercise any power on behalf of the Council. The conduct which is the subject of these paragraphs cannot, as a matter of law, be the subject of a claim of misfeasance in public office.

[82] In contrast to some of the acts alleged against the Council in relation to Lot 1 where it can be unequivocally concluded, as a matter of law, that the plaintiffs cannot succeed with the allegation that the acts constitute misfeasance in public office, the allegations against the Council in respect of 37 Jasmine raise many factual disputes which, generally, do not permit any conclusion to be reached on the pleading about the substance of the allegations.

[83] Many of the allegations made by the plaintiffs in respect of 37 Jasmine which the Council submits relate to conduct for which there was statutory authority could, arguably, be acts which were relevantly beyond power, if the Council were wrong about the failure of the plaintiffs to comply with approved plans and specifications in relation to the construction of the various keystone retaining walls and the boulder wall and the plaintiffs can show in respect of each impugned act that the Council or the relevant officers did the acts with malice or reckless indifference as to whether the acts were beyond power and in circumstances which satisfy the other elements of the tort of misfeasance in public office.

Acts where employees not exercising any power - 37 Jasmine

[84] Paragraph 93 of the statement of claim appears to be directed at an internal recommendation by Eagles that no height relaxation be allowed in respect of the proposed dwelling on 37 Jasmine. This is a recommendation that was made before the application for the height relaxation was lodged. There is no allegation in the statement of claim that the Council or any of its officers acted on that recommendation. This conduct, as presently pleaded, is not itself the exercise of power by Eagles or the Council and cannot be the subject of a claim of misfeasance in public office.

[85] The plaintiffs allege in paragraph 98 of the statement of claim that, when the Councillors attended on site on 12 August 1994, a confrontation occurred between the male plaintiff and one of the Councillors during which that Councillor said to the male plaintiff "We're going to get you". The plaintiffs characterise that statement also as Threat No 6 and allege that the Council, by that particular Councillor, did not have the power to issue Threat No 6. The making of that statement may be a fact on which the plaintiffs may be able to rely in conjunction with other relevant facts to draw an inference as to the state of mind of the Council or one or more of its officers at a particular time. The making of the statement, however, by the Councillor during the site inspection was not the exercise of power on the part of the Council and cannot, as a matter of law, by itself be the subject of a claim of misfeasance in public office.

[86] Paragraphs 141 and 145 of the statement of claim concern letters respectively sent by the Council to the plaintiffs on 2 and 20 November 1995 advising of the Council's position in relation to compliance by the plaintiffs with the building approval for the retaining walls and removal of encroachments. Although the plaintiffs characterise these letters respectively as Threats Nos 8 and 9, the mere advice by the Council of its proposed action, without taking any action at that stage, is not the exercise of power which can ground a claim of misfeasance in public office.

Other paragraphs of the statement of claim that are objectionable

[87] Paragraph 46 of the statement of claim pleads the issue of Notice No 2 which was a notice to cease work in respect of Lot 2. The plaintiffs allege there was no factual basis for the issuing by the Council of Notice No 2 on 21 January 1994. No damages are alleged to have been suffered by the plaintiffs as a result of conduct by the Council in respect of Lot 2. Presumably paragraph 46 of the statement of claim is pleaded for the purpose of the plaintiffs relying on that conduct as part of a pattern of conduct from which the plaintiffs are seeking to infer the requisite state of mind on the part of the Council in relation to acts of the Council that are alleged to constitute misfeasance in public office. Paragraph 46 of the statement of claim therefore cannot remain as an allegation that independently constitutes misfeasance in public office.

[88] Paragraph 65 of the statement of claim makes the allegation about the notation that the Council had made on the file relating to Lot 1 about drainage which the plaintiffs found out about on 8 September 1995 in the course of their sale of Lot 1 and which the Council agreed to delete on 15 September 1995. No damages are claimed as a result of the making of that notation. It is an allegation that does not support any cause of action that is pleaded against the Council and in respect of which no consequence is alleged and should be struck out. If the plaintiffs contend that allegation is part of a pattern of conduct from which they are seeking to draw an inference about the state of mind of a particular officer of the Council, then it would be a matter of incorporating the allegation in that part of the pleading that deals with the state of mind of the officer of the Council at the relevant time.

[89] Paragraph 99.1 of the statement of claim pleads the receipt by the Council of letters from nearby residents expressing concern about the keystone wall and demanding action be taken by the Council. That is a critical allegation relied on by the plaintiffs, as it is alleged that those demands affected the action taken by the Council in respect of 37 Jasmine. Paragraphs 99.2, 99.3 and 99.4 of the statement of claim set out action taken by the Council in disseminating those letters or the names and addresses of those residents to the Tribunal in 1995 and 1998 and the use made by the Tribunal in circulating those residents. Those allegations are irrelevant to the causes of action that are pleaded and should be struck out.

[90] Paragraph 100 of the statement of claim makes the allegation that the Council in its dealings with the plaintiffs from July 1994 was motivated as a result of the demands made by the residents (which are referred to in paragraph 99.1 of the statement of claim) to act in the manner that is set out in paragraphs 100.1 to 100.5. This is a general allegation that is difficult to reconcile with paragraph 173.2 of the statement of claim. The point that is made by the Council is that paragraph 100 is in breach of rule 150 (2) of the UCPR as it fails to identify the officer who, on behalf of the Council, is alleged to have been motivated in the manner pleaded. The Council relies on Australian Commercial Research and Development Ltd v Commonwealth of Australia [1995] 2 Qd R 336, 337, 339.

[91] The plaintiffs resist providing particulars of which officers were motivated as alleged, in reliance on the approach of Lord Hutton in the second judgment in Three Rivers at 270 [126]:

"Mr Stadlen, for the Bank, submitted that the pleadings were defective because they did not allege that identified or identifiable bank officials took conscious decisions to do acts or to refrain from doing acts with the requisite guilty state of mind. I do not accept that submission. It is clear from the authorities that a plaintiff can allege misfeasance in public office against a body such as a local authority or a government ministry: see Dunlop v Woollahra Municipal Council [1982] AC 158 and Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716. Therefore I consider that the plaintiffs are entitled in their pleadings to allege in the manner they have done misfeasance in public office against the Bank without having to give particulars of the individual officials whose decisions and actions they claim combined to bring about the misfeasance alleged."

The difference between the plaintiffs' claims and those made in Three Rivers is that the plaintiffs are claiming the several acts of identified officers of the Council as misfeasance in public office. The general allegation that was made in Three Rivers was that the Bank of England had abused its statutory powers in licensing BCCI as a bank and in failing to revoke the licence after it had been granted. The passage quoted from Lord Hutton's judgment is concerned with the proposition that the corporate body (in contrast to those natural persons through whom the corporate body acts) can be the subject of a claim of misfeasance in public office. If the plaintiffs wish to rely on the substance of paragraph 100 of the statement of claim, they should identify which of the officers were motivated as alleged and link the allegation with the relevant acts of the officers. It would be much more meaningful, however, if the allegations in paragraph 100 of the statement of claim were incorporated with properly pleaded facts relied upon by the plaintiffs to establish the requisite element of intention in relation to each act that is relied on as misfeasance in public office.

[92] Paragraph 101 of the statement of claim merely recites a step in the chronology which is not an allegation of fact that is material to any cause of action that is pleaded and should be struck out.

[93] Paragraph 125 of the statement of claim pleads that the plaintiffs were unsuccessful in obtaining a structural supervision certificate from an independent firm of consulting engineers because they said it was unnecessary in view of the plaintiffs' engineer's certification. That allegation is immaterial to either of the causes of action and should be struck out.

[94] Paragraphs 136 to 138, 146 and 151 of the statement of claim relate to correspondence between the plaintiffs and the Council in respect of the plaintiffs' complaint about the retaining wall situated on the Duncans' property. Those allegations are in the nature of evidence and are not facts pleaded in support of the plaintiffs' causes of action against the Council. Those paragraphs should be struck out.

[95] Similarly, paragraph 139 of the statement of claim merely recites the contents of a handwritten note that is evidentiary and not itself an allegation of fact. It should also be struck out.

[96] Paragraph 143 of the statement of claim makes the allegation that Pickering drafted the letter in the name of Duncan that was directed to the CJC sent the draft letter to the Council's solicitors for approval and the letter sent by Duncan to the CJC made allegations against the Tribunal in respect of an application made by the plaintiffs. No doubt the preparation of that letter and the Council's involvement in otherwise assisting Duncan and other residents to complain to the CJC would provide useful material for cross examination of Pickering and other officers of the Council in this proceeding. The allegation itself is, however, one that did not have any consequence for the progress of the plaintiffs' building approvals. It is clear from the submissions on behalf of the plaintiffs that the plaintiffs will seek to rely on this conduct of Pickering to infer the state of mind of Pickering (and possibly other officers of the Council) in doing other impugned acts. It may be that, if pleaded appropriately, the conduct can be relied on for that purpose, but it cannot be relied upon as independently grounding a claim of misfeasance in public office.

[97] In paragraph 162 of the statement of claim the plaintiffs allege that the Council's notice to demolish issued on 8 February 1996 claimed encroachment onto Lot 4 when the owner of Lot 4 had never claimed encroachment. That allegation may be able to be used as part of the formulation of the pattern of conduct on which the plaintiffs rely to draw the inference as to the state of mind of the Council or relevant officers of the Council (if that is what the plaintiffs are seeking to do), but is not itself an allegation of fact that is relevant for establishing one or more of the plaintiffs' causes of action.

[98] The allegation in paragraph 172 of the statement of claim that the Council's chief surveyor carried out numerous surveys of the plaintiffs' property during the period March 1994 to September 1997 is irrelevant to any of the causes of action that are otherwise pleaded in the statement of claim and should be struck out.

[99] I have not attempted to deal with each argument directed to each paragraph of the statement of claim. It is not necessary to do so, as many of the paragraphs will need to be reconsidered by the plaintiffs in an endeavour to comply with the requirements of ensuring that in respect of each cause of action, the allegations of fact to address each element of the cause of action have been pleaded.

[100] The plaintiffs have failed to properly plead damages. No attempt is made to identify what damage is said to flow from each alleged act of misfeasance and each alleged act of negligence. This is exemplified by the allegations in paragraphs 95 and 96 of the statement of claim. The effect of those allegations is that the plaintiffs were delayed by three days in lodging their application for height relaxation in respect of 37 Jasmine. No other consequence of the unsuccessful attempt by the plaintiffs to lodge the application before it was accepted by the Council is pleaded, other than that which can be inferred that there was that delay of three days. No specific damage is pleaded to have been suffered by the plaintiffs as a result of that delay of three days. Instead the plaintiffs' global claim for damages is attributed to each alleged act of misfeasance in public office including that disclosed by paragraphs 95 and 96. This is impermissible. It is particularly important in respect of a claim for misfeasance in public office which is not actionable without proof of injury and without proof of the requisite knowledge that the impugned conduct would cause or be likely to cause the particular loss or damage attributed to the misfeasance that the damages that are claimed are linked to the relevant act of misfeasance in public office that is said to have caused those damages. As a claim for damages in negligence also requires proof of actionable damage, the same approach is required in pleading the damages attributable to each alleged act of negligence.

[101] The Council properly complains about the lack of compliance with r 155 of the UCPR in respect of the damages claimed in paragraph 187 of the statement of claim. The types of damages alleged to have been suffered by the plaintiffs and described in that paragraph are not quantified, no basis of calculation is therefore disclosed and the plaintiffs have failed to identify which of the described categories of damages flows from each alleged act of misfeasance in public office or negligence.

[102] It is submitted by the Council that the facts alleged by the plaintiffs against the Council do not disclose a cause of action in negligence against the Council. The Council primarily relies on the failure of the plaintiffs to allege against the Council a duty of care that has been recognised by the law as being owed by a local authority to persons in the position of the plaintiffs who were required to deal with the Council in connection with the approval for and construction of improvements on their land. The plaintiffs have to establish that in respect of a particular act or omission alleged against the Council, the Council was under a duty owed to the plaintiffs to take reasonable care to do the relevant act. It is not every action or exercise of statutory power of a local authority that gives rise to a duty of care to a person who has dealings with the local authority or who may be affected by the action or exercise of that power: Smith v Eurobodalla Shire Council [2005] NSWCA 89 at [98] to [104].

[103] The duty of care that the plaintiffs allege against the Council which is in very general terms is set out in paragraph 177 of the statement of claim:

"The defendant had a duty to take reasonable care in performing its functions under the Act and in particular to determine what works or actions by the plaintiffs were necessary to comply with the law and could be enforced by law in giving such notices, and in deciding whether to engage in such conduct."

[104] As a matter of law, the plaintiffs cannot show that the Council was subject to such an unconfined duty in relation to each dealing it had with the plaintiffs in respect of Lot 1 and 37 Jasmine. By way of example, the content of such an alleged duty has no relevance to the impugned conduct of the Council alleged in paragraphs 89, 93, 95, 98, 103, 123, 133 and 135.1. In any case, even if the Council were subject to a duty of care in such broad terms, the plaintiffs have failed to particularise each respect in which it is alleged that the Council breached the duty of care. All that is alleged by the plaintiffs on the issue of breach is found in paragraph 180 of the statement of claim:

"By the said conduct the defendant breached that duty in that the defendant exercised no care to ensure that the said conduct was performed in accordance with the law."

[105] The plaintiffs will need to replead to ensure that the content of the alleged duty of care applies to the impugned conduct and particularise the alleged breaches of the duty of care.

[106] To the extent that the plaintiffs allege that the Council was negligent in opposing the proceedings brought by the plaintiffs to seek redress against the Council's decision or for the Council to take proceedings against the plaintiffs, the Council submits that no reasonable cause of action is disclosed by the statement of claim. There is support for that submission in the statement made in Beach Club Port Douglas v Page [2005] QCA 475; (2005) 143 LGERA 180, 187:

"...no duty of care in negligence is owed by one litigant or his solicitor for the negligent conduct of litigation that causes loss to the plaintiff."

The plaintiffs therefore cannot pursue the claim for damages for negligence in respect of the Council's participation in those proceedings.

[107] Although the Council's primary position is that after six years of trying to get a proper statement of claim from the plaintiffs, the proceedings should be dismissed as an abuse of process, most of the hearing of the application was directed at the defects in the statement of claim and what could be done to address them.

[108] One thing is clearly disclosed by the statement of claim and that is the frustration of the plaintiffs in their dealings with the Council in relation to Lot 1 and, more particularly, 37 Jasmine. Frustration does not necessarily equate to a good cause of action. It is not unknown for frustration to colour a litigant's perspective about a proceeding. The fifth statement of claim appears to be framed in order to express the frustration of the plaintiffs, without truly addressing the allegations of fact that are essential to support the causes of action sought to be relied on. The tort of misfeasance in public office is not common. It requires a plaintiff to make serious allegations about those who were entrusted with a public office. Those allegations can be pursued only if they can be properly framed to disclose a reasonable cause of action.

[109] Although this application has been made in relation to the fifth statement of claim, it appears it is the first time there has been a substantive hearing about the deficiencies in the pleading. I am not convinced that there is no prospect of the plaintiffs being able to replead at least some of their allegations in relation to 37 Jasmine in a way that should enable the proceeding to continue. I therefore do not consider it appropriate to strike out the proceeding at this stage as an abuse of process.

[110] Although I have indicated some specific paragraphs which should be struck out, it should also be apparent from these reasons that sufficient parts of the statement of claim require repleading to justify the whole statement of claim being struck out. It would not be possible for there to be a fair trial of the proceeding on the basis of the extensive deficiencies in the statement of claim. It is unnecessary to make a separate order in respect of the specific paragraphs that I have identified should be struck out and which cannot ground either a claim for damages for misfeasance in public office or negligence. Any repleading by the plaintiffs must be done, however, in the context of the conclusions reached in these reasons about the deficiencies in the statement of claim.

[111] The Council submitted that this is an appropriate case for an order that the plaintiffs not file a further statement of claim, unless the plaintiffs obtain the leave of the court prior to filing such statement of claim. Counsel for the plaintiffs did not oppose such a course (at T44). In the circumstances it is appropriate to make an order of the nature sought by the Council.

[112] The Council in its written submissions seeks a costs order in similar form to that made in Emanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd [2003] QSC 299. The plaintiffs in their written submissions indicated that they were unclear what the Council meant by making that submission. One aspect of the costs order in that case was that the losing party was ordered to pay costs on an indemnity basis. Because of the number of versions of the statement of claim that preceded the fifth statement of claim and the attempts by the solicitors acting for the Council to articulate in correspondence legitimate concerns about the formulation of the plaintiffs' allegations, it may be appropriate to order that the plaintiffs pay the Council's costs of the application filed on 11 April 2006 on an indemnity basis. Before making any orders as to costs, however, I will hear submissions from the parties.

1. That the amended statement of claim filed on 21 December 2005 be struck out.

2. That any further statement of claim in this proceeding not be filed by the plaintiffs without obtaining the leave of the court prior to filing the further statement of claim.

3. That the plaintiffs provide to the defendant a draft of any further statement of claim at least three weeks prior to the hearing of an application seeking the leave of the court to the filing of the further statement of claim.

4. Liberty to either party to apply on three days' notice in writing to the other.