The misfeasance claim - consideration
69 The Local Government Act 1995 (WA) provided that a local government, such as the Shire, had to administer its local laws and "may do all other things that are necessary or convenient to be done for, or in connection with, performing its functions under this Act" (s 3.18(1)), and "In performing its executive functions, a local government may provide services and facilities" (s 3.18(2)). Part 5 of the Act dealt with administration, including the publication of the minutes of a meeting of a local government council, such as the Shire Council, to which issue we will refer later in these reasons in relation to the minutes claim. Importantly, s 5.36(1)(a) required a local government to employ a chief executive officer, defined as CEO in s 1.4, and the CEO had to be employed on a contract (s 5.36(2)). The CEO's functions, set out in s 5.41, included ensuring that advice and information is available to the council so that informed decisions can be made, causing council decisions to be implemented and managing the day to day operations of the local government (here the Shire) (s 5.41(b), (c) and (d)).
70 We have summarised at [43]-[52] above the findings of the primary judge about Mr Friend's email that he sent at 3:31pm on 14 October 2010 to Messrs Bateman and van Bronswijk, and copied to Mr McDonnell, six councillors and three other individuals including Mr Griffiths.
71 Relevantly, Mr Friend sent that email using the Shire's email account and it bore his name, official position and details as chief executive officer of the Shire under the subject heading "Pharmacy Power". Mr Friend said that he included all the councillors of the Shire Council in his email because:
I quite often do that in relation to matters of operation, particular matters that the community will then badger them on. So my council has never liked being blind-sided by - hot issues … So it was important that they get copied in, same with my senior officers. (emphasis added)
72 Shortly afterwards, Mr Friend assisted Mr Mitchell in preparing and sending his letter of 14 October 2010 (set out at [46] above) in which he recorded that power had been disconnected to the residence of Mr and Mrs Nyoni at 3:01pm and to the pharmacy at 3:32pm.
73 Mr Friend said in his witness statement, that he verified at the trial, that since becoming chief executive officer in late April 2009, he had received regular complaints in relation to how the pharmacy had been, and was being, run. He said that as "the Shire's CEO I was concerned that the pharmacy wasn't providing a good service to the community. I viewed the pharmacy as an essential service to the people of Kellerberrin". In cross-examination, he said that "from … a local government perspective, we deal with … a great number of complaints, some of which can be dealt with at a local government level and some of which … we need to refer to authorities" that had some form of control over the issue the subject of the relevant complaint.
74 It is necessary to decide whether the primary judge was correct to hold that Mr Friend did not exercise the powers attaching to his public office of the Shire's chief executive officer when he sent his email of 14 October 2010 and assisted Mr Mitchell to send his letter of that date.
75 Mr Friend acted maliciously, on the primary judge's findings, in sending his 14 October 2010 email and causing Mr Mitchell's letter to be produced and sent to the two regulators. The harm that Mr Friend sought to bring about, using his position as chief executive officer of the Shire in an official email from him in that office, was to give the Department and the Pharmaceutical Council a basis to act against Mr Nyoni to undermine his ability to act as a professional, licensed and qualified pharmacist at the pharmacy.
76 Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ in Northern Territory v Mengel (1995) 185 CLR 307 at 345, in a passage applied by Gleeson CJ, Gaudron, Kirby and Hayne JJ in Sanders v Snell (1998) 196 CLR 329 at 346-347 [42], held that misfeasance in public office:
is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power. (emphasis added)
77 In Mengel 185 CLR at 335-336 Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ, explained that the officers concerned had acted outside the scope of their authority when they informed the Mengels that their cattle were subject to movement restrictions. However, the officers did not have actual knowledge that they lacked authority and the Mengels contended in the High Court that constructive knowledge sufficed to impose liability on the officers for misfeasance in public office. Thus, the High Court had to determine the requisite state of mind for that intentional tort.
78 The joint judgment held that the tort was not simply constituted by an act of a public officer which, first, he, she or it knows is beyond power and, secondly, results in damage. Rather, their Honours held that the tort should be confined in the same way as those torts that imposed liability on private individuals for the intentional infliction of harm, including acts that, in the ordinary course, are calculated to cause harm (Mengel 185 CLR at 347). They instanced what Wright J had held in Wilkinson v Downton [1897] 2 QB 57 where the defendant falsely told the plaintiff that her husband had been seriously injured in an accident, intending that she believe that his statement was true. The plaintiff suffered serious and permanent physical consequences and mental upset for which the jury awarded her £100 damages. Wright J identified the principle that, if the defendant wilfully did an act that was not justifiable and was calculated to cause physical harm to the plaintiff and that in fact caused such harm, the law would impute that the defendant intended to cause harm of the kind suffered (Wilkinson [1897] 2 QB at 58-59).
79 As Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ recognised, Wright J's imputed intention was different from a finding that the defendant recklessly did the act that brought about the harm suffered. Their Honours did not consider it necessary to decide whether a defendant's recklessness could suffice to constitute the tort (Mengel 185 CLR at 347), but they held that an officer could not be liable for misfeasance in public office on the basis that the officer only had constructive knowledge of his or her lack of authority (at 348).
80 As Gummow, Hayne, Heydon and Crennan JJ noted in Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 at 153-154 [11], 164 [55], after the High Court had accepted in Sanders 196 CLR at 346-347 [42] that the tort of misfeasance in public office included where the public officer acted knowingly in excess of his or her power, the House of Lords indicated in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 192F-G per Lord Steyn (Lords Hope of Craighead and Hobhouse of Woodborough agreeing at 197C-D and at 231F-H), and at 228A-D per Lord Hutton (Lord Hobhouse of Woodborough agreeing at 231F-H), that recklessness may also be a sufficient state of mind to found the tort. Their Honours then referred to "[t]he affinity between tort law and public law" that "reflects the precept that in a legal system such as that maintained by the Constitution executive or administrative power is not to be exercised for ulterior or improper purposes [cf Three Rivers [2003] 2 AC at 190H-191A]" (Futuris 237 CLR at 153-154 [11]).
81 It is of the essence of misfeasance in public office that the officer either maliciously (with the intention of injuring the plaintiff) uses his, her or its power or, alternatively, knowingly acts in excess of that power. That can occur because the officer either had no actual power to exercise or acted on the basis of an existing power but beyond its scope. One way of acting beyond the scope of a public power is for the official to use the power maliciously because he or she intends to cause harm: Mengel 185 CLR at 345 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ; see too at 356-357 per Brennan J. As the joint judgment explained in Mengel 185 CLR at 335, the officials in that case had no power at all to do the acts complained of but, because they lacked any knowledge of that want of power, and had no malicious intention, they did not commit the tort (see too Farrington v Thomson and Bridgland [1959] VR 286 at 293-294 per Smith J).
82 Thus, in Mengel 185 CLR at 357 (and see too at 370-371 per Deane J), Brennan J explained that malice and actual knowledge (including, in his view, also reckless indifference) were alternative states of mind. He said that either state of mind established "the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office".
83 In Sanders 196 CLR at 344 [37] Gleeson CJ, Gaudron, Kirby and Hayne JJ said that misfeasance in public office "is concerned with misuse of public power". The circumstances in which public officers can misuse their powers cannot be confined to closed categories. That is because experience of human affairs suggests that it is unwise to attempt to categorise possible abuses. Rather, the principle identified by their Honours encapsulates the ambit of operation of the tort. The concern of the law in this area is to ensure that a person injured by an intentional or knowing misuse of public power will have an effective means of redress.
84 In Dunlop v Woollahra Municipal Council [1982] AC 158 at 172E-G Lord Diplock, giving the advice of the Privy Council, described the tort as "the well-established tort of misfeasance by a public officer in the discharge of his public duties" (see too Mengel 185 CLR at 345 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ, at 356-357 per Brennan J and at 370 per Deane J; Watkins v Secretary of State for the Home Department [2006] 2 AC 395 at 404 [11] per Lord Bingham of Cornhill). He said that Yeldham J, in the Supreme Court of New South Wales, had "rightly accepted that the council as a statutory corporation exercising local government functions was a public officer for the purposes of this tort".
85 For the purposes of these proceedings, Mr Friend's malicious intention, as found by his Honour, should be imputed to his employer, the Shire. That is because, first, Mr Friend was acting consistently with the Shire's campaign to harm Mr Nyoni and, secondly, in pursuing a complaint against Mr Nyoni he was acting as the Shire, not merely as its representative. His was the mind of the Shire for that purpose, so that he was personally liable and, because he was "the hands and brains" of the Shire, the Shire became directly (and not vicariously) liable for any misfeasance in public office by reason of the same acts of Mr Friend on 14 October 2010: Hamilton v Whitehead (1988) 166 CLR 121 at 127-129 per Mason CJ, Wilson and Toohey JJ.
86 The observations of Wilcox, Miles and RD Nicholson JJ in Emanuele 179 FCR at 300 [34] concerned a senior public official who allegedly falsely reported to his superiors the substance of a conversation that suggested the commission of a crime. Their Honours observed that whether the official's report were true or false, his compilation and delivery of it "were not actions done in the exercise of powers attaching to a public office. They were simply the actions of an employee reporting an alleged event to superior officers". In other words, their Honours found that the act complained of was not the exercise or purported exercise by the official of a power or authority of his public office. The mere making of a report to a superior involved no exercise of power or authority. Likewise, in Calveley [1989] AC at 1240C-F, Lord Bridge reasoned that a subordinate making an allegedly inaccurate report to the deputy chief constable, that resulted in the latter suspending the plaintiff police officer from duty, was not an exercise or purported exercise of a power or authority by the subordinate capable of constituting the tort of misfeasance in public office. In contrast, his Lordship said that, had the deputy chief constable acted maliciously when he suspended the plaintiff, that "would certainly be capable of constituting the tort of misfeasance in public office".
87 In his article, Misfeasance in Public Office: Some Unfinished Business (2016) 132 LQR 427, Emeritus Professor Mark Aronson helpfully discussed aspects of the tort. He contended that spite or an intention to harm are not sufficient if the officer's action complained of is in fact lawful, relying on the following statement by Harper J in Grimwade v Victoria (1997) 90 A Crim R 526 at 566 (see 132 LQR at 441):
Malice of itself is insufficient unless the exercise of the power is only valid if done without malice: a parking officer may be as malicious as he likes in giving a parking ticket to his worst enemy whose vehicle is illegally parked. And the fact that the officer intends to cause harm (by fixing the enemy with an obligation to pay the fine) is wholly beside the point. (emphasis added)
88 However, his Honour's example was, with respect, flawed. That is because it overlooked that the causative role of the officer's intention, in his act of giving the parking ticket, would be to injure the "enemy" as opposed to carrying out his lawful duties, were the officer not acting maliciously.
89 Six years after Harper J's decision, Iacobucci J, giving the judgment of the Supreme Court of Canada (McLachlin CJ, Gonthier, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ) in Odhavji Estate v Woodhouse [2003] 3 SCR 263 at 280-282 [21]-[23], explained that if the public officer acts maliciously, he, she or it does not exercise the power for the purpose for which it exists.
90 Iacobucci J said that the authorities in Australia, New Zealand and the United Kingdom (relevantly Mengel 185 CLR 307, Garrett v Attorney-General [1997] 2 NZLR 332 and Three Rivers [2003] 2 AC 1) had not limited the tort of misfeasance in public office to the unlawful exercise of a statutory or prerogative power actually held ([2003] 3 SCR at 279-281 [19]-[22]). He identified the essential ingredients of the tort, based on Three Rivers [2003] 2 AC 1, as falling into two categories. His Category A involved a public officer whose conduct was specifically intended to injure a person or class of persons, while his Category B involved a public officer who acted with knowledge both that he, she or it had no power to do the act complained of and that act was likely to injure the plaintiff ([2003] 3 SCR at 281 [21]-[22]). Iacobucci J said that the two categories represented two different ways in which the officer could commit the tort, the common elements of which were ([2003] 3 SCR at 281-282 [23]):
First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. What distinguishes one form of misfeasance in a public office from the other is the manner in which the plaintiff proves each ingredient of the tort. In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff. (emphasis added)
91 Thus, in most cases, Harper J's parking officer's personal animus against his "enemy" will be merely coincidental to his everyday function of giving parking tickets. However, if the officer used his power for the dominant purpose of injuring the "enemy", then that would be an improper use of the power.
92 Iacobucci J's reasoning is consistent with the alternative characterisations of the mental element in Mengel 185 CLR at 345, with the statement of Gleeson CJ, Gaudron, Kirby and Hayne JJ in Sanders 196 CLR at 344 [37] that misfeasance in public office "is concerned with misuse of public power", and with Lord Steyn's identification of the rationale for the tort as "that in a legal system based on the rule of law executive or administrative power 'may be exercised only for the public good' and not for ulterior or improper purposes" (Three Rivers [2003] 2 AC at 190H (approving what Nourse LJ had held in Jones v Swansea City Council [1990] 1 WLR 54 at 85F)). Lord Steyn's view reflects what Gummow, Hayne, Heydon and Crennan JJ had held in Futuris 237 CLR at 153-154 [11].
93 Lord Steyn recognised that there are two distinct ways in which the tort of misfeasance in public office may be committed. First, targeted malice, namely where the public officer engages in conduct that is specifically intended to injure a person or persons. In a case of targeted malice there is bad faith in the sense that the exercise of public power is done for an improper or ulterior motive. Secondly, the public officer acts knowing that there is no power to do the act complained of and that that act will probably injure the plaintiff (or applicant). In such a case, the public officer acts in bad faith because the officer does not have an honest belief that the act complained of is lawful: Three Rivers [2003] 2 AC at 191E-F.
94 Iacobucci J's Category A is what Lord Steyn called "targeted malice": see too Commonwealth v Fernando (2012) 200 FCR 1 at 23-24 [109]-[111] per Gray, Rares and Tracey JJ; Sanders v Snell (No 2) (2003) 130 FCR 149 at 175-176 [98]-[100], 177 [106], 178 [108] per Black CJ, French and von Doussa JJ. In Sanders (No 2) 130 FCR at 178 [108], the Full Court said that:
The "targeted malice" that is central to the first form of the tort requires in the present case a finding of an intention to terminate the plaintiff's employment as a means of inflicting harm upon him. The intention to inflict harm must be "the actuating motive". (emphasis in original)
95 They explained that, since the essence of the tort is the "dishonest abuse of power", the mere intention to harm will not be sufficient if harm of that nature would necessarily result from the proper exercise of that power.
96 Public power exists to be exercised for public, not private, purposes: Futuris 237 CLR at 153-154 [11]. A public officer can use, with a proper or improper purpose, a power to make a grant to persons of public money, a licence or authority. The improper purpose, such as to do a favour for a friend, to give a benefit to a relative or to give the quid pro quo for a bribe, is an abuse of the power even though that or any other officer could have decided to do the same act for lawful and proper purposes. Clearly enough, it will be a very rare case in which an officer, such as Harper J's parking officer, will be proven to have acted for an improper purpose in giving a ticket to a person who both illegally parked a vehicle and coincidentally is the officer's enemy. But, the difficulty of imagining a particular case should not obscure the commonplace experience that persons entrusted with powers can and do misuse them.
97 The elements of the tort of misfeasance in public office have been crafted carefully to ensure that they do not encompass the negligent or unintentional acts or omissions of a public official. The tort requires, first, a misuse of an office or power, secondly, the intentional element that the officer did so either with the intention of harming a person or class of persons or knowing that he, she or it was acting in excess of his, her or its power, and, thirdly, that the plaintiff (or applicant) suffered special damage or, to use Lord Bingham's more modern characterisation, "material damage" such as financial loss, physical or mental injury, including recognised psychiatric injury (but not merely distress, injured feelings, indignation or annoyance): see Watkins [2006] 2 AC at 403 [7], 410 [27].
98 Because misfeasance in public office is an action on the case, it is a necessary element of the tort that the plaintiff (or applicant) suffer actual or "special" or "material" damage: Ratcliffe v Evans [1892] 2 QB 524 at 527-528 per Bowen LJ for himself, Lord Esher MR and Fry LJ (see too Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 79 [56] per Gummow and Hayne JJ). He said where "damage is the gist of the action" it was necessary to prove "actual temporal loss with certainty and precision" ([1892] 2 QB at 532), however this was "subject to the qualification of good sense and of justice" (at 531). Bowen LJ explained that in an action on the case for injurious falsehood:
The nature and circumstances of the publication of the falsehood may accordingly require the admission of evidence of general loss of business as the natural and direct result produced, and perhaps intended to be produced.
99 At common law, ordinarily, slander or defamation orally or by spoken words was not actionable per se without an allegation and proof of special damage. However, there were exceptions to that rule. In some cases, slander was actionable without special damage, namely, where the defamatory publication related to the plaintiff's business or profession or office of profit, "the mere imputation of want of ability to discharge the duties of that office is sufficient to support an action. It is not necessary that there should be imputation [sic] of immoral or disgraceful conduct": Alexander v Jenkins [1892] 1 QB 797 at 800 per Lord Herschell, with whom Lindley and Kay LJJ agreed. Lord Herschell explained that (at 800-801):
It must be either something said of him in his office or business which may damage him in that office or business, or it must relate to some quality which would shew that he is a man who, by reason of his want of ability or honesty, is unfit to hold the office. So much with regard to offices of profit; the reason being that in all those cases the Court will presume, or perhaps I should rather say the law presumes, such a probability of pecuniary loss from such imputation, in that office, or employment, or profession, that it will not require special damage to be shewn. It may be said to be an arbitrary rule. Be it so; (emphasis added)
100 In Watkins [2006] 2 AC 395, the House of Lords rejected a claim by a prisoner that prison officers and the Home Secretary had committed misfeasance in public office when three prison officers maliciously opened letters to the prisoner from his lawyers. That was because their Lordships found that the prisoner could not establish that he had suffered "material damage", however unlawfully the three officers had acted.
101 There is a distinction between that situation and the present case, where Mr Friend targeted his malice to have the two regulators take steps to cause Mr Nyoni to cease operating his pharmacy by raising matters with them that suggested that Mr Nyoni was unfit to properly conduct, or incapable of properly conducting, his profession or the business of a pharmacist. The making of such an allegation by a public officer or body, such as Mr Friend or the Shire, to another government agency or authority with regulatory powers over a person in Mr Nyoni's position should be presumed (as it would in cases of slander) to cause sufficient material or actual damage to support the action of misfeasance in public office.
102 In substance, Mr Friend intended, maliciously, as his Honour found, to cause both economic and reputational harm to Mr Nyoni. There is no reason why the law should ignore the reality that a professional person must suffer some real, material harm, when a public officer makes a complaint about the person to a regulator of his or her profession.
103 The next question is whether in sending his email of 14 October 2010, and causing Mr Mitchell's letter to be sent, to the Department and the Pharmaceutical Council, Mr Friend acted in exercise or purported exercise of a power of his public office. It is inherent in the performance of the most senior executive office of a governmental institution, such as a Department of State or a local government council, that the office-holder must make representations and communications on behalf, or as the voice, of that institution to others, including other organs of government responsible for exercising functions or powers that affect the office-holder's employer.
104 Here, the provision of pharmacy services in Kellerberrin was a matter of concern to the Shire, as the local governmental body responsible for the provision of certain essential and other services to its constituents and others in Kellerberrin. As his Honour found, from at latest January 2010, Mr Friend and his employer, the Shire, had engaged in a continuing campaign to persuade regulators of pharmacists to act in exercise of their powers so as to bring about the result that Mr Nyoni would cease operating the Kellerberrin pharmacy: see [50] above.
105 Mr Friend acted, in sending his email of 14 October 2010 and causing Mr Mitchell's letter to be sent, with the intention that these would cause other public authorities to act on their powers to suspend or prevent Mr Nyoni from continuing to practice as a pharmacist or to dispense essential medicines. That was, as the primary judge found, Mr Friend's intention. It is also safe to infer that Mr Friend advisedly employed the means that he believed would best give effect to the fulfilment of his intention.
106 Mr Friend's argument that, as chief executive officer, he "had no power to direct either of the institutions those officers [Mr Bateman and Mr van Bronswijk] represented to take any particular action" must be rejected. This was not a case where Mr Friend had any power to direct those other institutions. But he did have power, in his capacity as the Shire's chief executive officer, to make and pursue complaints with, or make representations to, other governmental authorities about matters that directly affected, or advanced the interests of, the Shire as another governmental institution.
107 Mr Friend was using the authority of the Shire and his own office to seek to cause two governmental institutions to send officers to Kellerberrin the next day with a view to them taking action adverse to Mr Nyoni because of the disconnection of the electricity supply to the pharmacy. Hence, Mr Friend's question at the conclusion of the 14 October 2010 email, "I assume I will see you both tomorrow?" In effect, Mr Friend was making a complaint, using his office, to two regulatory bodies that a pharmacy in the Shire, that was an important, if not essential, service in Kellerberrin, could not operate properly without electricity. As he acknowledged in his evidence to the primary judge, Mr Friend considered that the pharmacy was in the class of "hot issues" for the elected councillors, hence he copied all of them into his 14 October 2010 email. Moreover, as the primary judge found, Mr Friend also procured the production and despatch to the two regulators of Mr Mitchell's letter of 14 October 2010, that confirmed that the power supply had been disconnected, with the intention of harming Mr Nyoni.
108 Where a very senior public official uses his or her own office, with the intention to cause harm, to make a complaint about another person to another governmental or other institution or body with power to adversely affect the person complained of, is it correct to say that the official, in doing so, is using a "power" of his or her office? Appointment to a public office clothes an official with authority to exercise the powers and functions of the office on behalf of or for the appointor. Mr Friend explained in his evidence that an aspect of his, and the Shire's, office was to deal with "a great number of complaints … some of which obviously we need to refer to authorities".
109 The tort of misfeasance in public office involves a misuse of the power of the office. The officer must either intend that misuse to cause harm (whether or not the exercise of the power is within its scope) or know that he or she is acting in excess of his or her power: Mengel 185 CLR at 345. That is, depending on the officer's state of mind in exercising the power, the misuse can be one that would be within the power (i.e. a use that, if coupled with an intention to use it that was not to cause harm, would be lawful) or in excess of the power (i.e. a use for which, in essence, there is no power because the officer knows that the act is beyond - in excess of - the power). Nonetheless, it is necessary to establish that the alleged misfeasance is connected to a power or function that the officer has by virtue, or as an incident, of his or her public office.
110 The primary judge followed what Lord Bridge said in Calveley [1989] AC at 1240-1241, namely that if a police officer investigating suspected criminal or disciplinary activity maliciously (i.e. intending to cause harm to the suspect) makes a false report to a disciplinary officer which is defamatory of the suspect, the suspect has a cause of action in defamation against the officer. But, his Lordship said:
… the report is defamation not misfeasance in public office, since the mere making of a report is not a relevant exercise of power or authority by the investigating officer.
111 His Honour reasoned that Mr Friend's actions in sending the 14 October 2010 email and assisting in the production and despatch of Mr Mitchell's letter were not done in the exercise of powers attaching to a public office, albeit that these were not communications to a superior officer as in Calveley [1989] AC 1228 or Emanuele 179 FCR at 300 [34].
112 The principle in cases such as Calveley [1989] AC 1228 and Emanuele 179 FCR 290 appears to be that the action of making or furnishing internal communications or reports by employees to superiors within a governmental institution may not amount to an act done in the exercise of the author's public office. That is, such an act, whatever may be its ultimate influence or impact on those who are the superiors of the actor, does not have an immediate or direct consequence on the person who is, or in due course comes to be, injured by it. In such a case, the injury arises directly from a subsequent act that, while it may have been caused by the earlier malicious report, is distinct from it. It is likely that the cases on which his Honour relied had sought to distinguish intermediate actions in a chain of causation from the effective and immediate cause of injury, being the ultimate exercise of the public power such as, for example, the arrest or charging of the suspect by, or under the orders of, an officer other than the malicious author of the report.
113 Here, the injury of which Mr Nyoni complained was Mr Friend's acts, as chief executive officer, that, on 14 October 2010, initiated investigative and disciplinary actions by other authorities in relation to Mr Nyoni. Mr Friend exercised the power to make an official complaint, on behalf of the Shire, against Mr Nyoni to the Department and the Pharmaceutical Council. Mr Friend used a power of his office maliciously to make complaints to the two governmental authorities. His exercise of that power was complete when he set the investigation processes in motion against Mr Nyoni.
114 Mr Friend had no other relevant power to exercise, unlike the situation in the cases involving internal reports. He exercised the only power - the power to make an official complaint - that was relevantly available to him as chief executive officer of the Shire, deliberately to harm Mr Nyoni. He used his office, and its authority, to inform the two institutions about the disconnection of electricity to Mr Nyoni's pharmacy and ensured that Mr Mitchell's confirmatory letter was sent to them in order to harm Mr Nyoni by causing the institutions to take action against him. Each of the Pharmaceutical Council and the Department promptly wrote to Mr Nyoni on 15 and 19 October 2010, respectively, informing him that continuous supply of electricity to a pharmacy was essential and attributing to him the responsibility for the cessation of supply on 14 or 15 October 2010. Moreover, the Department's letter warned Mr Nyoni that if another disconnection were to "occur under similar circumstances" it would consider suspending his licence for the pharmacy.
115 On his Honour's findings, Mr Friend intended that his actions on 14 October 2010 would bring about, at least, such a result, namely that the two regulators would treat the disconnection of electricity to the pharmacy as a matter adverse to Mr Nyoni's entitlement to continue to operate it. Importantly, as noted above, his Honour found that no one, including Mr Friend, had advised Mr van Bronswijk or the Department that Mr Nyoni was not at fault for the electricity being disconnected and that Mr van Bronswijk was left with the impression that Mr Nyoni had been at fault.
116 As a consequence, the two regulators maintained uncorrected on their records in relation to Mr Nyoni and the pharmacy, the false report, that Mr Friend had sent or caused Mr Mitchell to make, that Mr Nyoni was responsible for the disconnection of the pharmacy that would be used against him should there be a repetition. That result advanced the campaign against Mr Nyoni that Mr Friend and the Shire had been pursuing.
117 Mr Friend's actions were not isolated or unexplained. He had been acting on the instructions and with the authority of the Shire for months, in expressing complaints about Mr Nyoni to the Department, as his 6 January 2010 letter to its Minister showed, and the Pharmaceutical Council.
118 In our opinion, based on the primary judge's findings of fact, Mr Friend committed the tort of misfeasance in public office in acting as he did on 14 and 15 October 2010 by sending his email and assisting Mr Mitchell to produce and despatch his letter to convey that Mr Nyoni was at fault for the pharmacy's disconnection. In so acting Mr Friend was also acting as the Shire so as to make it also liable for misfeasance in public office: Dunlop [1982] AC at 172F-G; Hamilton 166 CLR at 127-129. Their intention, of injuring Mr Nyoni in doing so, entailed that their exercise of a public power was done for an ulterior and an improper purpose and, so, was a misuse of their powers: Futuris 237 CLR at 153-154 [11]. It was targeted malice.
119 Given that the primary judge had the advantage of seeing and hearing the witnesses over a lengthy trial, we consider that we should remit the assessment of damages, including aggravated and or exemplary damages, to his Honour which he should be able to do without the need for further submissions.