Judgment Number: [2020] TASSC 9

1. In July 2019 the plaintiff filed a writ naming the State of Tasmania as defendant. An amended statement of claim was filed on 23 December 2019. In general terms, the allegations are as follows. In 2013 the plaintiff and his partner used their home as a foster home for five boys. On various occasions in January and February 2013 the 14 year old brother of two of the boys in foster care stayed overnight at the home. The child accused the plaintiff of sexually assaulting him and the plaintiff reported the allegation to the relevant department at the time overseeing foster care, being the Department of Health & Human Services. A police investigation followed which resulted in a decision not to bring charges. The Secretary of the Department was empowered under the Children, Young Persons and Their Families Act 1997 (Tas) (the Act), s 18 to conduct an assessment as to the circumstances of a child reasonably believed or suspected to be at risk. The task of undertaking the assessment was delegated to an officer of the Department. Notwithstanding the decision of the police not to bring charges, about a month after that decision, in June 2013, the officer published a report which implied that the plaintiff had sexually abused the child. The result was that the five foster children, then in the care of the plaintiff and his partner, were removed from the foster home with resultant economic loss to the plaintiff. The pleading includes a claim that in publishing her report the officer recklessly disregarded the scope of her authority and by so doing engaged in misfeasance in public office. There are other complaints about the conduct of the officer which the plaintiff alleges constitute misfeasance in public office. The pleading in respect of the claim for damages for misfeasance in public office appears at paragraphs 15 - 26 of the amended statement of claim.
2. Insofar as the claim that there was misfeasance in public office is concerned, the plaintiff says that the State is liable by reason of the Act, s 111, which is as follows:

(1) A person engaged in the administration of this Act does not incur any personal liability in respect of any act done, or omitted, in good faith in the performance or exercise, or purported performance or exercise, of a function or power under this Act.

(2) A liability that would, but for subsection (1), attach to a person attaches to the Crown."

1. There is a separate claim for damages for negligence which is set out at paragraphs 27 - 50 of the amended statement of claim.

An application to dismiss the action with judgment or, in the alternative, to strike-out the claim for damages for misfeasance in public office

1. The interlocutory application, filed 23 January 2020, is as follows:

"The State of Tasmania applies for the following orders:

1. Pursuant to Rule 259 of the Supreme Court Rules 2000, the action be dismissed and judgment be entered for the defendant with costs because the amended statement of claim does not disclose a reasonable cause of action.
2. Alternatively, pursuant to Rule 259, that paragraphs 15 - 26 of the amended statement of claim be struck out because they do not disclose any reasonable cause of action.
3. That the plaintiff pay the costs of this interlocutory application."
4. The application was listed for mention on 30 March. By that date the parties had filed written submissions. I was advised that neither party wished to make oral submissions. Accordingly, I have determined the application on the written submissions filed.
5. The Supreme Court Rules 2000, r 259, is as follows:

If a pleading does not disclose a reasonable cause of action or answer or shows that the cause of action or defence is frivolous or vexatious, the Court or a judge may order -

(a) that the action be stayed or dismissed or the pleading be struck out; and

1. An explanation as to the operation of the rule is contained in Pridmore v Magenta Nominees Pty Ltd [1999] FCA 152, 161 ALR 458, where R D Nicholson J said at [24]:

"A cause of action is every allegation of fact which the plaintiff must prove to establish the right to the relief claimed (Letang v Cooper [1964] EWCA Civ 5; [1965] 1 QB 232; Docarmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234). A 'reasonable cause of action' means a cause of action with some chance of success, when considering the allegations of fact contained in the challenged pleading alone. The terms 'vexatious' and 'frivolous' have been used interchangeably (The Atlantic Star [1974] AC 436 at 464 - 468). 'Frivolous' has been held to be apt to describe proceedings in which the Plaintiff's claim is so obviously untenable that it cannot possibly succeed (Burton v Shire of Barnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92). 'Vexatious' has been held to be apt to describe an action which is a sham and which cannot possibly succeed (Wills v Earl Beauchamp (1856) 11 PD, 63)."

1. Summary disposition is reserved for clear cases only. In Dey v Victorian Railways Commissioners (1949) 78 CLR 62, Dixon J (as he then was) said at 91:

"A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury."

1. The defendant says that the tort of misfeasance in public office necessarily contains the element of malice so that liability cannot attach to the State under the Act, s 111. As to the claim in negligence, the defendant says that a person conducting a risk assessment for the care and protection of children can owe no duty of care to an alleged perpetrator of abuse, as a duty of care owed to a child is irreconcilable with the existence of a duty of care also being owed to an alleged perpetrator of child abuse. It was submitted that the High Court case of Sullivan v Moody [2001] HCA 59, 207 CLR 562 is directly in point and stands in the path of the plaintiff's negligence claim so that that claim must inevitably be dismissed.
2. As can be seen from the way in which the defendant's application has been framed, if the claim for damages for misfeasance in public office is not struck out the whole of the application stands to be dismissed.

Should the claim against the State for damages for misfeasance in public office be struck out?

1. As indicated earlier in these reasons, the plaintiff's claim for damages for misfeasance in public office includes a component of reckless disregard by the officer of the extent of her power. In particular the pleading includes the following:

"23.2.1 Being recklessly indifferent to whether she was empowered to make the finding of guilt and disseminate it, ..."

1. Recklessness, as opposed to carelessness, on the part of an officer may be sufficient, when combined with the likelihood of resultant harm and the fact of harm, to make good the claim. In Northern Territory v Mengel (1995) 185 CLR 307 the majority said at 347:

"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."

1. Mengel leaves open the possibility that a public officer, albeit in a misguided way, who has engaged in reckless conduct but has been motivated by considerations of public benefit, rather than personal gain or vindictiveness, may be liable for the tort. In such circumstances it may be that, notwithstanding the misfeasance, the action was undertaken in "good faith" within the meaning of the phrase in s 111. It follows that the claim against the State cannot be summarily dismissed.
2. In any event, the power to strike-out a claim is discretionary. Pleadings may alter as further information comes to light during the course of a proceeding. In this regard, it is relevant to note that if the officer acted with de facto authority, for example in accordance with departmental protocols or under supervision, the State could be potentially liable on that basis. In Mengel the majority said at 347:

"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 a de facto authority, there will ordinarily only be personal liability."

1. Because of the way in which the interlocutory application has been framed and in light of my finding that the claim against the State in respect of misfeasance in public office cannot be struck out, I do not need to consider the question of whether or not the claim in negligence is untenable. The assessment of that claim will have to await the trial.
2. I make the following order:

(1) The defendant's interlocutory application filed 23 January 2020 is dismissed.