Supreme Court of WA|2003-02-12|Before: Mr J, Templeman J

Neilson & Anor v City of Swan [2003] WASC 20 (12 February 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : NEILSON & ANOR -v- CITY OF SWAN [2003] WASC 20

Practice and procedure - Application to strike out parts of statement of claim involving allegation of misfeasance in public office

1 TEMPLEMAN J: This is the defendant's application to strike out parts of the plaintiffs' statement of claim. Strictly, however, it is an application to disallow parts of a proposed amended statement of claim.

2 The original statement of claim, which was endorsed on the writ dated 18 March 2002 was far too brief. When the matter came before me to be managed in the long causes list, I ordered that certain parts of the original statement of claim be struck out and gave the plaintiffs leave to file and serve a minute of amended statement of claim. That was on 6 June 2002.

3 On 22 July 2002, the plaintiffs filed a proposed amended statement of claim. This was a very substantial document which had been formatted in a way that made it very difficult to follow. On 14 August, I directed the plaintiffs to re-paragraph the proposed amended statement of claim. This was done. A minute of proposed amended statement of claim was filed on 19 August 2002. The defendant's application to strike out the pleading was filed on 25 October 2002.

4 I now turn to the background to the action, which I summarise as follows.

5 The plaintiffs are husband and wife. The first named plaintiff, Mr Neilson, owns the property at 341 Lilydale Road, Gidgegannup, which he and his wife, Dr Loggie, have occupied since 1995. Lot 341 is located in a valley and overlooks Lot 504 Toodyay Road, Gidgegannup, to which I shall refer as "Lot 504".

6 On 10 February 1999, the defendant, which is the planning authority for the Gidgegannup area, granted approval for Outline Development Plan 106 ("ODP106") for the proposed development of Lot 504. This was done under the defendant's Town Planning Scheme No 9 ("TPS9").

7 The plaintiffs contend that the defendant's approval of ODP106 was unlawful, on a number of grounds. This contention alone provides no basis for relief: the plaintiffs do not seek a prerogative writ. However, the plaintiffs contend also that the defendant's conduct in granting approval to ODP106, and in relation to various other activities, was such as to constitute a misfeasance in public office; that it was negligent and breached various statutory duties. In their action, the plaintiffs claim:

"1. General, aggravated and exemplary damages and special damages following on the injuries they have suffered because of the defendant's actions.

2. Damages for the reasonable expectation of further future loss of amenity of Lot 341.

3. A Direction that the defendant shall perform its duty to stop unlawful works on Lot 504.

4. Costs."

8 As I have noted, the plaintiffs' original statement of claim was far too brief, having regard to the nature of the allegations they make. The proposed amended statement of claim runs to 115 pages. The pleading, which has been prepared by the plaintiffs themselves, sets out their complaints in some detail. That is not a matter for criticism. It is the result of my direction to give full particulars of their claim so that the defendant would know precisely what case it had to meet.

9 Against that background, I turn to the defendant's strike out application and deal with the various paragraphs there identified.

Paragraphs 7(1)(b)(ix), 7(1)(b)(x), 7(1)(b)(xi), 7(1)(b)(xvi) and 7(1)(b)(xvii).

10 The plaintiffs allege in par 7 of the statement of claim (as I shall refer to the document) that the approval of ODP106 by the defendant was unlawful. In par 7(1)(b), the plaintiffs refer to cl 2.3.8.1 of TPS9 which is said to state that:

"the Council when exercising a discretion on an application for development approval or exercising this discretion with respect to consideration of planning matters shall have due regard to (inter alia) any principle of law applicable to the circumstances, the provisions of this Scheme, any planning policy adopted by the Council, interests of orderly and proper planning and the preservation of the amenity of the relevant locality."

11 The plaintiffs allege that the defendant breached cl 2.3.8.1 in various respects.

12 In subparagraph (ix) the plaintiffs allege that the defendant withdrew the threat of a defamation action against the plaintiffs on 1 February 1999, shortly before it approved ODP106. This late removal of the threat (or perhaps the threat itself) is alleged to have hampered the plaintiffs' ability to put their point of view to councillors.

13 In subparagraph (x) the plaintiffs allege that the defendant claimed falsely that Mr Neilson had fabricated facts which supported his complaint about a certain site visit and falsely claimed that Mr Neilson had defamed staff, "and thereby influenced Councillors to think poorly of the Plaintiff Neilson and failed to protect his interests or the interests of the Plaintiff Loggie".

14 Then in subparagraph (xi) it is alleged that the defendant assessed the plaintiffs' submission on ODP106 in a biased manner.

15 In my view, none of these allegations has any bearing on the defendant's obligations as set out in cl 2.3.8.1 of TPS9, with one possible exception. That is, a possible obligation to afford natural justice to the plaintiffs. However, that is a matter which is addressed elsewhere in the pleadings.

16 Paragraph 7(1)(b)(ix), (x), (xi) should therefore be struck out.

17 In subparagraph (xvi) the plaintiffs allege that the defendant failed to seek legal advice on the legality of certain matters relating to the proposed development of Lot 504; or in the alternative, did seek such advice "but proceeded to circumvent it to the maximum extent possible".

18 Mr Neilson's point, as explained in the course of argument, was that he had provided material to the defendant (as had its own planning officers previously) questioning the lawfulness of at least certain aspects of the proposed development. That being so, Mr Neilson submitted, it was incumbent on the defendant to seek its own advice on these issues. That is the principle of law which, Mr Neilson submits, emerges from Glass v Commonwealth of Australia [2002] ACTSC 30.

19 I accept that the principle and its potential application to this case are sufficiently arguable to justify an allegation along the lines of that contained in subparagraph (xvi). However, as presently formulated, the subparagraph does not, I think, put the plaintiffs' position with sufficient clarity.

20 I will therefore strike out subparagraph (xvi) with liberty to amend to clarify the position.

21 In subparagraph (xvii) the plaintiffs allege a failure on the part of the defendant to consider a statement emanating from the Department of Environmental Protection in July 1998 that "in many cases the impact of tourism developments is directly linked to the scale of development taking place and the volume of tourist numbers". This statement seems to me, with respect, to be rather obvious. However, the gravamen of the complaint seems to be similar to that underlying subparagraph (xvi). That is, a failure on the part of the defendant to obtain an expert opinion in relation to an apparently legitimate view that the approval of ODP106 might be unlawful.

22 I will therefore strike out subparagraph (xvii) but with liberty to the plaintiffs to amend if they wish to pursue this aspect of the matter.

"TPS9 Clause 8.1.3 states the Council shall not recommend or support subdivision of land within a rural zone except in accordance with the provisions under any relevant Clause 2.4A Policy and in any event minimum lot sizes prescribed in or under this Scheme will apply. The Defendant breached this in that it allowed for possible strata titling of the entire Lot 504 which was in effect a covert subdivision producing lot numbers far in excess of normal sub divisional expectations for Lot 504. Wearing and Neil (EcoTourism: Impacts, Potential and Possibilities, 1999, Butterworth-Heinemann) note that many tourism developments are nothing more than land speculation or a means of making otherwise conventional residential developments acceptable to planning authorities."

24 As I understand the plaintiffs' argument, it is that because the approval of ODP106 foreshadowed a strata titling of Lot 504, which would result in lot sizes far below the minimum permitted by TPS9, the approval was unlawful.

25 That is a question of law, which seems to me to be arguable. However, I accept the defendant's submission that the allegation that the approval "was in effect a covert subdivision" is scandalous. There is no subdivision. It is the potential for subdivision which is the essence of the argument.

26 I will therefore strike out the balance of par 7(1)(g) after the reference to Lot 504. A full stop will be inserted at that point. The reference to the text by Wearing and Neil is inappropriate in a pleading and will be struck out for that reason.

27 Paragraph 7(2) alleges that the defendant denied the plaintiffs natural justice when approving ODP106. Many examples are given under this heading. It is alleged, inter alia, that the defendant had regard to irrelevant considerations and approached the planning application in a way which exhibited bias against the plaintiffs. Several of the allegations do not involve breaches of the rules of natural justice, so much as a denial of procedural fairness.

28 Counsel for the defendant submitted that there was no basis alleged for the duty of natural justice. As I understood the submission, it was that in the absence of any such allegation, the pleading was embarrassing and should therefore be struck out.

29 The extent to which a planning authority is required to accord natural justice (or procedural fairness) to persons affected by planning decisions is open to considerable debate. It is not a question which I would attempt to resolve on a strike out application. In principle, therefore, I consider that the plaintiff should be permitted to raise the matters pleaded in par 7(2), provided that the individual allegations support the principal contention and are particularised.

30 Having regard to these considerations, I will strike out par 7(2)(b)(i). It is there alleged that the defendant "acted at the behest of outside interests" in approving ODP106. The outside interest there identified is the State Government which is alleged to have been supportive of the developer of Lot 504. There is, however, nothing in the pleading which alleges any express or implied request by the State Government, to the defendant, to approve the development. The paragraph contains a complaint against the Minister for Tourism. This is, however, irrelevant to the case against the defendant.

31 In par 7(2)(c), it is alleged that the defendant "breached its obligations to allow the plaintiffs an unbiased decision maker".

32 I will strike out par 7(2)(c)(i), in which it is alleged that Mr Fraser, a former planning officer of the defendant, resigned "because of management changes in the planning staff of the defendant". This has no relevance to an allegation of bias.

33 It is then alleged that Ms Fisher, a member of the defendant's planning staff was "enthusiastic about development and recreational possibilities on Lot 504". However, what may well have been simply the personal views of Ms Fisher are not relevant to an allegation of bias by the decision-maker, which I take to be a planning committee.

34 It is then alleged that Mr Richardson, the defendant's former Principal Planner, exhibited bias against the plaintiffs at a site meeting in May 1998. However, it is not clear what Mr Richardson is alleged to have said.

35 On the basis that the decision to approve ODP16 was taken by a committee, the plaintiffs cannot rely simply on the apparently biased views of the defendant's officers. It would be necessary to prove that the decision-making body was biased, or that those of the defendant's officers responsible for advising or informing the decision making body failed to do so in an unbiased manner. The plaintiffs make such allegations elsewhere in the pleading.

36 I will strike out par 7(2)(c)(iv) where it is alleged that he defendant "has a pro-development bias". To allege that the defendant is generally in favour of development, is one thing. To say that the defendant was therefore biased against the plaintiffs in the present case is quite another.

37 I will strike out par 7(2)(c)(v). The allegations about the defendant's "excessive goal orientation" and other matters are far too vague to be of any probative value in the present case. The allegation in the balance of the paragraph that the defendant spread defamatory comments about the plaintiffs are serious. But if they are to be pursued, full particulars will be required.

38 I will strike out par 7(2)(c)(vi). The fact that Councillor Burgess apparently changed his view is not indicative of bias against the plaintiffs.

39 I will strike out the last sentence of par 7(2)(c)(ix), where it is alleged that the defendant allowed the developer of Lot 504 "a foot in the door". This sentence is argumentative and adds nothing to the allegation of bias contained in the balance of the paragraph.

40 I will strike out par 7(2)(c)(x). It does not follow from the fact that one of the defendant's officers told Mr Neilson that "Councillors did not like complaints against staff" that the defendant was thereafter biased against Mr Neilson.

41 I will strike out par 7(2)(c)(xi). I would not be prepared to draw the inference from an undertaking that future submissions would be considered on their merits, that previous submissions had not. Even if that inference could be drawn, the allegation is far too vague to be of any probative value.

42 I regard par 7(2)(c)(xii) as unsatisfactory in its present form because it is far too vague. It will be struck out. The pleading alleges antipathy to the plaintiffs, on the part of Mr Lumsden and Mr Richardson: and that the antipathy "permeated to and coloured the views of the Council and Councillors of the defendant". The observations I have made above, in relation to par 7(2)(c)(i), are equally applicable here.

43 I will strike out par 7(2)(c)(xiii). The fact that Mr Richardson was described by an environmental officer of the defendant as "an environmental vandal" is not probative of bias on the part of the defendant itself.

44 I will strike out par 7(2)(c)(xiv). The allegation that Councillors "expressed reckless disregard for the effects of pollution" is too vague.

45 I will strike out par 7(2)(c)(xv). The fact that a neighbour of the plaintiffs had been given incorrect advice about the subdivision of Lot 504 in 1997 or 1998 does not indicate that the defendant's planning staff had been planning for the approval of a tourism resort on Lot 504 since about late 1996. Even if such an indication could be drawn, it does not follow that the defendant had determined to deny procedural fairness to the plaintiffs, if and when such an application might be made.

46 I will strike out par 7(2)(c)(xvi). The allegation that a Councillor and certain of the defendant's officers conspired to lie to the Ombudsman in regard to the investigation over a site visit is, far too vague. If the allegation is to be pursued, it must be shown to be relevant to the defendant's consideration of the planning application which resulted in ODP 106.

47 Subparagraph 7(2)(c)(xvii) is unacceptable in its present form because of its lack of particularity. It will be struck out. It is not clear which "staff report" is referred to, or what the biased and defamatory statements were.

48 In par 7(2)(d) various allegations are made that the defendant breached its obligations "to provide transparency in its processes". In my view, this paragraph does not disclose a cause of action, bearing in mind that it is pleaded in aid of the general allegation that the approval of ODP 106 was unlawful. Lack of transparency in an approval process does not equate to unlawfulness in that process. In any event, many of the allegations in par 7(2)(d) relate to post approval matters. Other allegations (relating to the waiver of advertising requirements for example) appear elsewhere in the pleading in a legitimate context. The whole of par 7(2)(d) will therefore be struck out.

49 This paragraph alleges simply that the defendant "has misfeased in public office". While this bold assertion is unsupported by any detail, it is clear enough that the matters alleged subsequently in the pleading are intended to supply that detail. However, for reasons to which I will refer below, the subsequent paragraphs do not remedy the defect. Paragraph 10 will therefore be struck out.

Paragraphs 12(1) - (10), 12(12) - (15) and 12(17) - (23)

50 Paragraph 12 is intended to identify the matters relied upon by the plaintiffs in support of their contention that there has been a misfeasance in public office by the defendant. This follows on from par 11, which identifies the defendant's staff and councillors, who are alleged to hold public office.

51 Paragraph 12 contains a lengthy catalogue of acts which are alleged to range from the criminal, through maladministration, to the discourteous. All these acts, are said to fall within the opening words of par 12, alleging that:

"The defendant performed invalid exercises of powers or purported exercises of power ..."

52 The tort of misfeasance in public office is long established but nevertheless awaits a comprehensive definition in order that there shall be a coherent development of the law: see Three Rivers District Council v Bank of England [2000] UKHL 33; [2000] 3 All ER 1 at p 7, per Lord Steyn.

53 The most recent decision of the High Court in relation to misfeasance in public office is Northern Territory of Australia v Mengel (1996) 185 CLR 307. There, in a joint judgment, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ held at p 347 that:

"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."

The state of mind of the defendant is an important element in the tort. This is made plain in the judgment of Lord Steyn in Three Rivers District Council v Bank of England (supra) at p 8. His Lordship said:

"The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."

54 In the same case, Lord Millett, who agreed with Lord Steyn, set out in his own words what he considered to be the elements of the tort of misfeasance in public office. In so doing, his Lordship pointed out that "the core concept is abuse of power". He went on:

"It is important to bear in mind that excess of power is not the same as abuse of power. Nor is breach of duty the same as abuse of power. The two must be kept distinct if the tort is to be kept separate from breach of statutory duty, which does not necessarily found a cause of action. Even a deliberate excess of power is not necessarily an abuse of power."

55 Lord Millett then went on to deal with what are generally regarded as the two limbs of the tort. The first limb is traditionally described (as Lord Steyn had described it) as "targeted malice". It covers the case where the official acts with intent to harm the plaintiff. The second limb is said to cover the case where the official acts without such intention but in the knowledge that his conduct will harm the plaintiff. Lord Millett said he did not agree with the formulation. In his Lordship's view, the two limbs were merely different ways in which the necessary element of intention would be established: "In the first limb it is established by evidence; in the second by inference" (at p 49).

"The rationale of the second limb is not so transparent. The element of knowledge which it involves is, in my opinion, a means of establishing the necessary intention, not a substitute for it. But intention does not have to be proved by positive evidence. It can be inferred. Proof that the official concerned knew that he had no power to act as he did and that his conduct would injure the plaintiff is only the first step in establishing the tort. But it may and will usually be enough for the necessary intention, and therefore of the requisite state of mind, to be inferred. The question is: why did the official act as he did if he knew or suspected that he had no power to do so and that his conduct would injure the plaintiff? As Oliver LJ said in Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1985] 3 All ER 585 at 624, [1986] QB 716 at 777:

'If an act is done deliberately and with knowledge of its consequences, I do not think that the actor can sensibly say that he did not 'intend' the consequences or that the act was not 'aimed' at the person who, it is known, will suffer them.'

As that case demonstrates, the inference cannot be rebutted by showing that the official acted not for his own personal purposes but for the benefit of other members of the public. An official must not knowingly exceed his powers in order to promote some public benefit at the expense of the plaintiff."

57 It follows from the statements of principle set out above, that it is not sufficient for the plaintiffs to allege simply that the defendant performed invalid exercises of power. There will be no cause of action unless there has been an abuse of power in the sense that the relevant act must, to the knowledge of the defendant, be beyond its power. That being so, it is necessary, in my view, for the plaintiffs to identify not only the act complained of but also, the power said to have been abused by the defendant in acting in the way alleged. It is then necessary to allege that the defendant knew or ought to have known that the conduct would injure the plaintiffs, and to provide the necessary particulars.

58 Where the plaintiffs complain about the actions of the defendant's officers, it will be necessary, in addition, to plead the basis on which it is alleged that the defendant is responsible for those actions, so as to make it liable for misfeasance in public office.

59 In my view, the whole of par 12 of the statement of claim is deficient because, in alleging only invalid exercises of power, it does not disclose a cause of action. Paragraph 12 will therefore be struck out on that ground. However, there are certain paragraphs which are objectionable in any event and are susceptible to being struck out on alternative grounds. General leave to amend will be given.

60 The first of these is par 12(2) in which reference is made to s 83 of the Criminal Code, followed by an allegation that the defendant approved ODP106 corruptly. Although, in the course of argument, Mr Neilson explained that the plaintiffs' intention had been to allege that the approval process was corrupt in the sense that it had not been followed properly, I do not read the paragraph in that way. In any event, that is not the kind of corruption with which s 83 is concerned.

61 Also in par 12(2), the plaintiffs allege that the former principal planner and the former senior planning officer of the defendant "incited the owners and/or employees of Lot 504 to engage in harassment of the plaintiffs". This harassment is alleged to have included "considerable" firing of high calibre guns for extended periods and making threatening and abusive telephone calls with the intent of forcing the plaintiffs to sell their property. However, the matters pleaded in paras 12(2)(b)(i) to (vii) do not support the allegation that the officers referred to, incited the owners of Lot 504 or their employees to engage in harassment of the plaintiffs. Paragraph 12(2)(b) will therefore be struck out on that ground also.

62 Paragraph 12(3) alleges breaches by the defendant of s 85 of the Criminal Code and various provisions of the Local Government Act 1995. Section 85 of the Criminal Code proscribes the falsification of records by public officers. The provisions of the Local Government Act relied upon by the plaintiffs are s 5.41, which sets out the functions of a Chief Executive Officer and s 1.3 and s 5.24 which state the aim of the Local Government Act in promoting greater community participation in the decisions and affairs of local government and promoting greater accountability of local governments to their communities.

63 The plaintiffs allege that the defendant breached these statutes in numerous ways and on numerous occasions. These include the alleged improper amendment of council minutes, a failure to minute certain matters raised by the plaintiffs at council meetings and the provision by council officers of accurate or complete information to councillors who were considering the approval of ODP106.

64 In my view, par 12(3) does not disclose a cause of action because breaches of the Criminal Code or of the Local Government Act do not necessarily involve an abuse of power of the kind necessary to ground an action for misfeasance in public office. An alternative ground therefore exists for striking out par 12(3).

65 I make the same observation, in relation to paras 12(4), (5), (6), (7), (8), (9), (10), (12), (13), (14) and (15).

66 No objection is taken to par 12(16), in which it is alleged that the approval of ODP106 was unlawful. I can see the argument that if (for example) the defendant did not comply with its statutory obligations in granting approval for ODP16, it abused its approval process: see Sanders v Snell (1998) 196 CLR 329, at par [40]. I can also see the argument that the defendant must have known, or ought to have known, that in such circumstances it had no power to act as it did; and that in granting approval, there was a foreseeable risk of harm to the plaintiffs because the effect of the approval would be to reduce the amenity, and hence the value, of their property. I can therefore see the argument that there was an abuse by the defendant of its power to approve the proposed development.

67 I emphasise that I am merely identifying an argument which, in my view, is open to the plaintiffs on the basis of some of the facts and matters alleged in par 12(16). I emphasise also that I am not suggesting that the argument will or may succeed. As I have already said, the law in this area is developing and it may well be necessary for it to be resolved at an appellate level.

68 Despite my view that there may be a cause of action in par 12(16) I am not content to let the paragraph stand, because I do not think the cause of action is pleaded properly. I repeat my earlier observations about the necessary elements of the tort of misfeasance in public office. The plaintiffs will have an opportunity to address these issues when they consider amendments to their pleading.

69 For the avoidance of doubt, I should make it clear that I am not suggesting that the plaintiffs must allege that every act of which they complain is a misfeasance in public office. Mr Neilson, in the course of argument, submitted that if there was a series of errors on the part of a public officer, that would signify that the officer had no intention of complying with the law.

70 I accept, for present purposes, that it might so signify. However, the errors in question would need to be related in some way to the approval process if they were to be relevant. They might then be indicative of knowledge or intention, one or other of which is an essential element of the tort of misfeasance in public office.

71 Paragraphs 12(17), (18), and (19) allege, respectively, breach of statutory duty, negligence and defamation. In my view, none of these torts has any place in an allegation of misfeasance in public office. I am supported in that view by the decision of Debelle J in Rowan v Cornwall (No 5) [2002] SASC 160. There, the plaintiff joined claims for defamation and misfeasance in public office. The plaintiff succeeded under both heads. She was awarded damages for defamation and exemplary damages for the misfeasance. However, this was the only award under that head, because "the injury ... has been compensated by the award of damages in defamation" (par [712]). This emphasises the separate nature of the torts. In my view, therefore, these subparagraphs cannot be allowed to stand. I note that the plaintiffs now foreshadow amendments to their pleading to allege defamation.

72 In this paragraph it is alleged that the defendant acted "with malice and or reckless indifference" towards the plaintiffs. It is said that staff and councillors of the defendant bore malice towards the plaintiffs. Several matters are then set out. However, the defendant complains that the particulars (although they are not described as such) are vague and embarrassing. By way of example, in par 13(1)(a) it is alleged that:

"The plaintiff Loggie was addressed with numerous abusive and contemptuous comments by staff of the Department of Local Government and the Ombudsman's Office when discussing the processes of the defendant and this reflects the malicious and contemptuous view that permeated from the defendant's staff and councillors towards the defendants (sic) (plaintiffs)/"

73 Clearly, the allegation is far too vague. In any event, the offensive comments were not said to have been made by the defendant's officers but by staff of other instrumentalities.

74 Then, there are allegations that both Mr Richardson and Mr Lumsden bore malice against one or other of the plaintiffs, and that this also "permeated deliberative processes and attitudes of other staff and councillors of the defendant".

75 In my view, par 13 is objectionable on a number of grounds and should be struck out. First, it contains several allegations which are far too vague, and therefore embarrassing, to be permitted to stand. Secondly, and more fundamentally, an allegation that the defendant acted with malice and/or reckless indifference, does not of itself disclose a cause of action. If the allegations that Mr Richardson and Mr Lumsden bore malice against the plaintiffs are true, that may well have some relevance to the earlier claim of misfeasance in public office. However, I repeat, those allegations do not disclose a separate cause of action.

76 Paragraph 13(2) contains an allegation that staff and councillors of the defendant were "recklessly indifferent to the interests of the plaintiffs". This paragraph will be struck out for the same reasons as par 13(1).

77 In this paragraph, various sections of the Local Government Act are referred to, which are said to define the general function of local government and to provide that so far as is reasonable and practical, local government is to ensure that as little harm or inconvenience is caused by the performance of its executive functions. It is said also that s 3.22 of the Local Government Act 1995 imposes a duty on the defendant to compensate for damages caused by a local government in the performance of its functions. This, it is said, "effectually confers a private right of action for breach of the duties so owed".

78 Section 3.22 of the Local Government Act 1995 entitles an owner or occupier of land who "sustains damage through the performance by local government of its functions under this Act" to claim compensation. I emphasise the word damage because the section does not, as alleged in par 15, impose a duty on the defendant to compensate for damages. Furthermore, the entitlement to compensation does not confer a general private right of action for the breach by a local government of any of the duties it owes to the members of the community it governs.

79 Paragraph 15 does not contain any allegation of material fact and is argumentative. Although, under O 20 r 12 of the Rules of the Supreme Court, a party may raise a point of law in his pleading, the point sought to be raised here, is in my view, specious. Paragraph 15 will therefore be struck out.

80 This paragraph alleges breaches of a number of statutes so as to make out a claim for breach of statutory duty.

81 The statutes referred to include certain provisions of the Criminal Code and s 5.93 of the Local Government Act 1995 which proscribes the improper use of information.

82 Contravention of any provision of the Criminal Code does not constitute breach of statutory duty: it results in the commission of an offence. Likewise, the improper use of information does not necessarily involve a breach of statutory duty - unless there is a duty to use information in a particular way.

83 The plaintiffs rely also on various regulations in the Local Government Act (Administration) Regulations 1996, relating to the obligation of a local government to afford a member of the public who wishes to ask a question at a meeting to be given a fair opportunity to ask the question and receive a response.

84 While those provisions may be said to establish a statutory duty, I am not persuaded that the breach would be actionable: or even if it were, that it would assist the plaintiffs in the present case.

85 I make similar comments in relation to s 5.103 of the Local Government Act on which the plaintiffs rely also. This provision imposes an obligation on employees and councillors to comply with their applicable Code of Conduct. It is alleged that in many respects, the defendant's officers and councillors did not do so.

86 In my view, the whole of par 16, relying as it does on a breach of statutory duty, should be struck out, either because, for the reasons summarised above, the acts complained of do not constitute a breach of any statutory duty, or because the breaches alleged are not actionable in any event.

87 In this paragraph, it is alleged that damage was caused by the breach of statutory duty. Various heads of damage are relied on. These include nervous trauma, duress, and emotional distress and what might generally be described as the diminution in value of the plaintiffs' property. In addition, the plaintiffs contend that their reputations and social wellbeing have been damaged and that Mr Neilson's career prospects have been damaged "as a result of the defamation of his character by the defendant and a perception of him as a whistle blower".

88 This last allegation is untenable in any event. That is because the damage is said to have been suffered as a result of defamation, not by reason of breach of statutory duty.

89 More fundamentally, par 17 should be struck out because it flows from par 16 which does not disclose a cause of action.

90 All of these paragraphs relate to a claim in negligence. In par 18 it is alleged simply that the defendant has committed that tort. In par 19, it is alleged that the defendant "owed a duty of care to the plaintiffs". But, as a matter of law, there can be no all-embracing duty of care. If a duty of care exists, it must be defined. The plaintiffs attempt to do that to a certain extent, by relying on s 3.21 and s 3.22 of the Local Government Act. However, for reasons which I have given in relation to par 15 of the statement of claim, this allegation is, in my view, misconceived.

91 In par 20, it is alleged that there was a failure on the part of the defendant "to observe a reasonable standard of care". Many matters are relied on. However, it is not possible to judge whether any of these matters is appropriate, without knowing the nature of the duty relied upon. Only when the duty is known, can the conduct be measured against an appropriate standard.

92 In par 21, the plaintiffs allege that the breach of "duty of care" caused them injury or loss in a number of respects.

93 In my view, given the fundamental flaw in the allegation of negligence, the proper course is to strike out all of paras 18 - 21.

94 The order will be that the following paragraphs of the statement of claim will be struck out but that the plaintiffs will be given liberty to amend, or to file a further statement of claim within an appropriate period.

• Part of 7(1)(g), after the first reference to Lot 504

• 7(2)(c)(i), (iv), (v), (vi), the final sentence of (ix), (x), (xi), (xii), (xiii), (xiv), (xv), (xvi), (xvii)

Government Act](/cgi-bin/viewdoc/au/legis/wa/consol_act/lga1995182/) (Administration) Regulations 1996

Neilson & Anor v City of Swan [2003] WASC 20

At a glance

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Catchwords

Judgment (113 paragraphs)

Neilson & Anor v City of Swan [2003] WASC 20 (12 February 2003)

Paragraphs 7(1)(b)(ix), 7(1)(b)(x), 7(1)(b)(xi), 7(1)(b)(xvi) and 7(1)(b)(xvii).

Paragraphs 12(1) - (10), 12(12) - (15) and 12(17) - (23)

Parties

Legislation Cited (2)

Cases Cited (2)