Nyoni v Shire of Kellerberrin [2017] FCAFC 59 | Case summary

Federal Court of Australia (Full Court)|2017-04-13|Before: Rares JJ

INTRODUCTION 137 As North and Rares JJ have outlined the facts of the case, I need not do so in detail. Although I otherwise agree with their Honours' reasons, I disagree with the conclusion that the allegation of misfeasance in public office against Mr Friend has been proven. My reasons for that conclusion are substantially the same as those of the primary Judge. There are, however, a number of matters which I should address.

THE PLEADING 138 The pleading of Mr Nyoni's case is in an unusual form. The claim seems to be identified in a document headed "Draft Statement of Issues" in which, under the heading "Misfeasance in Public Office" the following paragraphs appear: 16 Whether by the engaging in alleged acts in authorising and/or directing Mr Mitchell to disconnect the electricity supply of Mr Nyoni, Mr Friend and/or Mr McDonnell deliberately acted beyond power, with the intention of harming Mr Nyoni's business. 17 Whether the Shire or Mr Friend or Mr McDonnell engaged in the conduct pleaded at paragraph 55 of the April statement of claim; and if so, whether the Shire is thereby liable for the conduct of Mr Friend or Mr McDonnell. 18 Whether Mr Nyoni suffered loss and damage by reason of their conduct, and if so the quantum of the loss. Whether aggravated and/or exemplary damages are payable. 139 The reference to para 55 of the "April statement of claim" is to an earlier statement of claim or draft statement of claim in which para 55 was as follows: 55. Following the disconnection of electricity as pleaded in paragraph 50 above, the Shire, or alternatively, Mr Friend, and or Mr McDonnell: 55.1. Immediately caused both the Pharmaceutical Council of Western Australia and the Western Australian Department of Health to be informed, by telephone, facsimile transmission, email transmission, or by letter posted that the Pharmacy had lost its electricity on 14 October 2010. 55.2. Caused the Western Australian Department of Health to be informed that Western Power had requested the electricity to be disconnected , which was not true; and 55.3. Did not inform the Pharmaceutical Council of Western Australia, nor the Western Australian Department of Health either, that the disconnection of the electricity was not the Applicant's fault (as was the case), nor that the Shire, Mr Friend and or Mr McDonnell had caused the electricity to be disconnected (as was the case). 140 Paragraph 50 relates to conduct which occurred on 15 March 2010 when the electricity supply to Mr Nyoni's pharmacy was disconnected. However it is clear that at the trial, the claim of misfeasance in public office concerned the disconnection of such supply on 14 October 2010. See the reasons at [19] and [351] and ground 7 in the notice of appeal. In the notice of appeal the cause of action seems to have been conflated with a claim for misleading or deceptive conduct. 141 In any event, the relevant conduct for present purposes is set out in the primary Judge's reasons at [357]-[359] as follows: 357 However, I have already found that on 14 October 2010, Mr Friend wrote and sent the email to Mr Bateman and Mr van Bronswijk advising them of the impending disconnection of the electricity to the pharmacy. I have also found that Mr Friend procured the production and dispatch of the letter signed by Mr Mitchell later on 14 October 2010. 358 I have also found that Mr Friend's intention in communicating with these authorities was to harm Mr Nyoni by causing the authorities to take action against Mr Nyoni as a consequence of the disconnection of the electricity. (See, [314] above.) 359 The question, therefore, is whether this conduct by Mr Friend constitutes the tort of misfeasance in public office.

THE HISTORY 142 The evidence demonstrates that for some years prior to 14 October 2010, the Kellerberrin Shire Council (the "Shire Council"), and/or persons associated with it had been dissatisfied with the way in which Mr Nyoni was conducting his pharmacy, the only pharmacy in the relevant area. There had been attempts to remove him from practice in the area and/or to induce another pharmacist to set up business there. Both the Pharmacy Board and the State Health Department had been drawn into the campaign against Mr Nyoni. The Pharmacy Board was a statutory body, responsible for administering Western Australian legislation concerning the practice of pharmacy. For present purposes, the relevant officer of the Pharmacy Board was Mr van Bronswijk a "pharmacist field officer". The Health Department's involvement seems to have been primarily in connection with the statutory control of the distribution of poisons. A Mr Bateman was the officer of the Department who was relevantly involved for present purposes. Prior to 14 October 2010, the electricity supply to the pharmacy premises had been cut off for non-payment of a bill. That event was presumably the result of action by the electricity supplier. However it caused concerns about Mr Nyoni's capacity to continue as a pharmacist in the area.

EVENTS ON 14-15 OCTOBER 2010 143 On 14 October 2010, Mr Mitchell was, as he understood it, instructed by a Mr Varney to disconnect the electricity supply to Mr Nyoni's properties. Mr Mitchell was an electrical contractor. Mr Varney owned a company which provided services to the electricity supplier. Mr Mitchell understood that he had been directed to disconnect the electricity supply to both Mr Nyoni's home and to the pharmacy. Before carrying out his instructions, Mr Mitchell spoke to Mr Friend, the chief executive officer of the Shire Council. It seems that Mr Friend had previously been involved in the campaign against Mr Nyoni. Mr Mitchell told him that he had been instructed to disconnect the electricity supply to the pharmacy. As a result, at 3.31pm Mr Friend sent the following email to Mr van Bronswijk and Mr Bateman: Tim/Robert I have been advised by Peter Mitchell, the local electrician, that he is cutting the power at both the pharmacy and Nyoni residence on Bedford Street this afternoon. I assume I will see you both tomorrow? 144 His Honour observed at [288]-[290]: 288 Mr Friend said in evidence that the reason he contacted Mr van Bronswijk and Mr Bateman was that in April 2010, he and Mr Tucker had met with Mr van Bronswijk and Mr Bateman when they came to inspect the pharmacy and that they had told him at that meeting, that if there were any issues in relation to the pharmacy, they should be contacted immediately. 289 At 4:04 pm on 14 October, Mr van Bronswijk replied to Mr Friend in the following terms: Please arrange to have the electrician confirm to me in writing on his letterhead (electronically or by facsimile) that he has carried out disconnection of the power supply to both premises once he has done so. 290 Mr van Bronswijk said, in cross-examination, that on receiving the email from Mr Friend advising him of the imminent disconnection of the electricity to Mr Nyoni's pharmacy and house on 14 October 2010, that he sought confirmation of the disconnection for the purposes of pursuing disciplinary action against Mr Nyoni. I accept that evidence. 145 At about 3.00pm Mr Mitchell disconnected the electricity supply to Mr Nyoni's home. He then went to the pharmacy. After a heated exchange with Mrs Nyoni, he disconnected the supply to the pharmacy. He then went to the Shire Council's premises and again spoke to Mr Friend. At about that time, or perhaps a little later, he signed a letter which had been prepared by somebody else, probably somebody working for the Shire Council. It was sent from the Shire Council's premises to Mr van Bronswijk. The letter read as follows: To Whom It May Concern Re disconnection of power to both sites owned by Chemist one being house and other being owner's business. Meter number for house is…disconnected at 3.01 pm on 14 October Meter number for chemist shop is…disconnected at 3.32 pm on 14 October Please note this is not the first time this has occurred on the same premises. 146 At [283] his Honour said: Mr Mitchell said that he then drove home and once he was at home he telephoned Mr Varney to give him the meter numbers and the meter readings. Mr Mitchell said that he could not remember the exact time but he thought it was between 5:00 pm and 6:00 pm. Mr Mitchell said that he then reported to Mr Varney that he had disconnected the electricity to the pharmacy and Mr Nyoni's house, and he gave Mr Varney the meter readings for both locations. Mr Mitchell said that Mr Varney then said words to the effect: "Oh did you do both?" and he said words to the effect: "Yes. That's what you told me to do this morning." According to Mr Mitchell, Mr Varney then said words to the effect: "Oh look sorry I have made a mistake. It was only his house that needed doing. Can you go and put the pharmacy back on?" 147 At [293]-[298] his Honour said: 293 The electricity to the pharmacy was reconnected by Mr Mitchell at around 9:45 am on 15 October 2010. 294 By email sent at 10:58 am on 15 October 2010, Mr Friend advised Mr van Bronswijk that the electricity to the pharmacy had been switched back on. Mr van Bronswijk gave evidence that neither Mr Friend nor anybody else had advised him that the electricity had been switched off through no fault of Mr Nyoni. I find this to be the fact. 295 Mr van Bronswijk emailed Mr Friend on 15 October 2010 saying: Thanks for letting us know, we have taken legal advice on the matter and will be writing to Mr Nyoni today regarding this issue. Given that the issue has been rectified, and the Council ceases to exist at 5.00 pm today, there is little else we can legitimately do at this point in time… 296 Mr van Bronswijk was left with the impression that Mr Nyoni was to blame for the disconnection of the electricity. On 15 October 2010, the registrar of the Pharmaceutical Council wrote a letter to Mr Nyoni stating: On 14 October 2010 the Council was advised by a licenced electrical contractor that at 3.32 pm on 14 October he disconnected the electricity supply to Kellerberrin pharmacy. Council was subsequently advised that the electricity supply to the pharmacy was reconnected at around 10.00 am this morning. This Council regards the continuous supply of electricity to registered pharmacy premises as essential to the provision of a professional pharmacy service. It is concerned that interruption of electricity supply to any pharmacy may render the provision of a safe and timely pharmacy service difficult. I suggest you take steps to ensure that this episode is not repeated in the future. 297 On 19 October 2010, Dr Robertson of the Health Department wrote the following letter to Mr Nyoni: I am writing to you as the Licence Holder for Kellerberrin Pharmacy (Pharmaceutical Chemist Licence 1983, issued under the Poisons Act 1964). The Department has been advised that the electrical power to Kellerberrin Pharmacy was disconnected, at the request of Western Power, at 3.32 pm on 14 October 2010. I understand the power was reconnected at approximately 10 am on 15 October 2010. I am aware that the electrical power was similarly disconnected from Kellerberrin Pharmacy between 15 March 2010 and 17 March 2010. Obviously power outages do occur at times as a result of natural disasters. However, this does not appear to be the case in the instances described above. I am very concerned that continued disconnection of electrical power from Kellerberrin Pharmacy makes it very difficult for scheduled medicines to be stored at the correct temperature, especially over the summer months and particularly if the pharmacy stocks medicines which require refrigeration. Should you choose to operate the pharmacy while the power is off, the risk of non-compliance with the labelling and recording requirements for Schedule 4 and Schedule 8 medicines, as specified in the Poisons Regulations 1965, is also likely to be increased unless you have a back-up power supply for operation of your dispensing computer system. Section 24 of the Poisons Act 1964 requires the Chief Executive Officer (CEO) to be satisfied that the premises of the applicant is suitable for the purpose for which the application is made and is properly and hygienically equipped for that purpose, before the CEO issues a licence under the Act. Regular and prolonged disconnection of electrical power could be considered to render the premises unsuitable for use as a pharmacy. This letter is to advise you that, should another power disconnection occur under similar circumstances, consideration will be given to suspending your Pharmaceutical Chemist Licence for Kellerberrin Pharmacy. 298 I infer from the contents of this letter that the Health Department had prior to Dr Robertson writing the letter, also been sent the confirmation letter of 14 October signed by Mr Mitchell. I also infer that neither Dr Robertson nor anybody else at the Health Department, had been advised that the disconnection of the electricity to the pharmacy had not been attributable to any fault on the part of Mr Nyoni. 148 At [314] his Honour concluded: I find that Mr Friend's intention in sending the email to Mr Bateman and Mr van Bronswijk advising of the impending disconnection of the electricity to the pharmacy, and in procuring the production and dispatch to Mr van Bronswijk of the letter of confirmation signed by Mr Mitchell, was to persuade the Pharmaceutical Council to consider taking disciplinary action against Mr Nyoni. The same is true in relation to the dispatch of the letter of confirmation to the Health Department. This action was part of a continuing campaign by Mr Friend and the Shire to persuade the various bodies which regulated the practice of a pharmacist, either to withhold benefits from, or impose sanctions against, Mr Nyoni so that Mr Nyoni would cease operating the Kellerberrin pharmacy and would be replaced by another pharmacist. That this was Mr Friend's and the Shire Council's objective from, at the latest, early January 2010, is obvious from the activities engaged in by Mr Friend and the Shire which are described in [90] to [137] above. The closing submissions of the second, third and fourth respondents, correctly acknowledge this to be the case. 149 As far as I can see, there is no evidence as to Mr Varney's reason for ordering disconnection of the electricity supply to either Mr Nyoni's home or to the pharmacy (if he in fact did so). Nor is there any evidence that Mr Friend or Mr Mitchell had any view as to why the electricity was to be disconnected at either site. Perhaps they inferred that a bill had not been paid. His Honour seems to have concluded that although Mr Friend's correspondence with Mr van Bronswijk, Mr Bateman and the Health Department did not say so, it led the recipients to infer as much. Any such inference may have been prompted by the fact that on a previous occasion, disconnection had been prompted by non-payment of a bill. It may also be that his Honour considered that most people would consider that the likely cause of any unexplained disconnection would be non-payment.

MISFEASANCE IN PUBLIC OFFICE 150 In this country, the authoritative statement of the law concerning the tort of misfeasance in public office is to be found in the decision of the majority of the High Court (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) in Northern Territory v Mengel (1995) 185 CLR 307. At 345, their Honours said: It was recognised as recently as 1973 that the precise limits of the tort of misfeasance in public office were then undefined. In important respects, that is still true. However, the weight of authority here and in the United Kingdom is clearly to the effect that it 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. 151 After expressing doubts about possible extensions of the circumstances which might constitute the tort, their Honours discussed aspects of the second form of the tort, that is acting with knowledge that the relevant actions were in excess of power. I am not entirely sure as to whether the present case is based upon the performance of duties with malice or knowing excess of power. The latter basis was pleaded, but the primary Judge seems to have treated the case as being based upon the former. This appeal has been conducted on the same basis. The primary Judge dismissed the claim upon the basis that the alleged misconduct did not occur in the exercise of powers attaching to a public office. That finding, if correct, would dispose of both forms of the tort. As I understand the passage from Mengel cited above, their Honours identified two situations which might constitute misfeasance in public office: the exercise of power with malice, and conduct knowingly performed in excess of power. There may, however, be room for debate about the meaning of the term "power" in that passage and in the primary Judge's reasons. 152 I should mention a number of other cases. In Emanuele v Hedley and Others (1998) 179 FCR 290 at 300-301, the Full Court held that merely reporting a conversation to a superior cannot generally found an action for misfeasance in public office. The Court endorsed the following observation by the primary Judge in that matter: However, the prosecution of Emanuele did not follow and was not the consequence of any power given to Hedley to act so as to report that conversation. He did not purport, for example, to declare Emanuele an ineligible tenderer by reference to some supposed head of executive or legislative power in reliance on that conversation. Nor is that alleged. He simply made an allegation to his superior which, if true, might have indicated a criminal intent on Emanuele's part and led to the exclusion of him and his companies from the tender process. That might have been defamation or injurious falsehood. However, as it did not lead to the exercise by him of any legislative or executive power, it is not malfeasance in public office on his part. 153 There has been no challenge to the correctness of this proposition. 154 The Full Court also accepted as correct the following proposition which appears in the reasons of Slade LJ in Jones v Swansea City Council [1990] 1 WLR 54 at 71: The essence of the tort, as I understand it, is that someone holding public office has misconducted himself by purporting to exercise powers which were conferred on him not for his personal advantage but for the benefit of the public or a section of the public, either with intent to injure another or in the knowledge that he was acting ultra vires. All powers possessed by a local authority, whether conferred by statute or by contract are possessed `solely in order that it may use them for the public good:' see Wade, Administrative Law, 6th ed. (1988), p. 400. In the present context, in my judgment, it is not the juridical nature of the relevant power but the nature of the council's office which is the important consideration. 155 In Jones, the relevant power was the council's power to pass a resolution concerning the proposed use of a particular site, owned by the council and leased to Jones. Such consent was required from the council as owner, and not in exercise of any power under a town planning scheme or other local government responsibility. The power was nonetheless exercised by the council in its public capacity. 156 The decision in Jones was handed down in the Court of Appeal on 3 March 1989. On 16 March 1989, the House of Lords published its reasons in Calveley v Chief Constable of the Merseyside Police [1989] 1AC 1228. The case involved an allegation that a police officer in investigating alleged corruption by another officer, in the course of the investigation, had made malicious and misleading reports to a superior officer. Lord Bridge of Harwich said at 1240-1241, (the other four members of the House concurring): I do not regard this as an occasion where it is necessary to explore, still less to attempt to define, the precise limits of the tort of misfeasance in public office. It suffices for present purposes to say that it must at least involve an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office he holds and which is done in bad faith or (possibly) without reasonable cause. The decision to suspend the plaintiff Park under regulation 24 was taken by the deputy Chief Constable. If this had been done maliciously in the sense indicated, this would certainly be capable of constituting the tort of misfeasance in public office. But it was conceded that no malice is alleged against the deputy Chief Constable and that malice on the part of Grant cannot be imputed to him. The pleaded case must therefore stand or fall according as to whether it identifies any act done by Grant in the exercise or purported exercise of a power or authority vested in him as investigating officer which was infected by the malice pleaded against him. I can find no such act identified by the pleading. No formal application to amend the pleading was made in the course of the argument, but at a late stage a document was placed before your Lordships indicating a pleading of additional particulars under paragraphs 22 and 24 which the plaintiff might seek leave to add by way of amendment if those two paragraphs in the statement of claim were allowed to stand. The particulars which it is suggested might be added under paragraph 24 would read: "From an early stage (the date whereof the plaintiff cannot further particularise until after discovery and/or interrogatories herein) Grant knew or believed that there were no proper grounds for suspending the plaintiff yet procured the imposition of and/or the continuation of the suspension by continuing the investigation and giving misleading and/or incomplete reports concerning the same." It is evident that if a police officer investigating suspected criminal or disciplinary offences makes a false report to his superior officer which is defamatory of the suspect and that report is made maliciously so as to lose its status of qualified privilege, the suspect has a cause of action in tort against the author of the report. But the tort 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. 157 In Garrett v Attorney-General [1997] 2 NZLR 332 at 349, Blanchard J, on behalf of the Court said, concerning the tort of abuse of process: The tort has at its base conscious disregard for the interests of those who will be affected by official decision making. There must be an actual or, in the case of recklessness, presumed intent to transgress the limits of power even though it will follow that a person or persons will be likely to be harmed. 158 In Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2AC 1 at 191, Lord Steyn identified the ingredients of the tort of misfeasance in public office as: the defendant must be a public officer; he or she must exercise power as a public officer; and he or she must either specifically intend to injure a person or persons; or knowing that he or she has no power, do an act which will probably injure the relevant plaintiff. 159 In Odhavji Estate v Woodhouse [2003] 3 S.C.R. 263 Iacobucci J said on behalf of the Court at [22]-[23]: 22 What then are the essential ingredients of the tort, at least insofar as it is necessary to determine the issues that arise on the pleadings in this case? In Three Rivers, the House of Lords held that the tort of misfeasance in a public office can arise in one of two ways, what I shall call Category A and Category B. Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff. This understanding of the tort has been endorsed by a number of Canadian courts: see for example Powder Mountain Resorts, supra; Alberta (Minister of Public Works, Supply and Services) (C.A.), supra; and Granite Power Corp. v. Ontario, [2002] O.J. No. 2188 (QL) (S.C.J.). It is important, however, to recall that the two categories merely represent two different ways in which a public officer can commit the tort; in each instance, the plaintiff must prove each of the tort's constituent elements. It is thus necessary to consider the elements that are common to each form of the tort. 23 In my view, there are two such elements. 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. 160 It is difficult to see why the formula "conduct in his or her capacity as a public officer", should be substituted for the words, "exercise of power", used in Mengel; "the exercise ... of any legislative or executive power", as in Emanuele; "purporting to exercise powers which were conferred on him ... for the benefit of the public", as in Jones; "a relevant exercise of power or authority", as in Calveley; or "exercise of power as a public officer", as in Three Rivers. Whilst it may be accepted that the power need not be a statutory power or a prerogative power, it does not follow that any action by a public officer-holder which causes harm to another may, without more, constitute misfeasance in public office. There must be some connection between the discharge of his or her official responsibilities and the conduct in question. A public officer-holder will generally discharge his or her function by dealing with other public officers and/or with members of the public. Not everything that he or she does will be done in discharge of such functions. There might be quite minor conduct, such as offering a member of the public a cup of tea, which is clearly not part of the public officer's functions. Such actions may be performed out of politeness or kindness. There may be more significant conduct which is, nonetheless, not part of the discharge of his or her functions. Providing information about a matter not directly related to such functions may be an example. Agreeing to enquire of another officer, about an unrelated matter, might be another. Offering to ascertain the policy of another government agency might be yet another. 161 The decisions in Emanuele and Calveley demonstrate that public officers may take other actions, much more closely involved with their public functions, which actions will, nonetheless, not be in performance of public duty for the purposes of the tort of misfeasance in public office. Both cases seem to have addressed the effect, or absence of effect of the conduct upon the relevant complainant. Where the conduct in question did not, itself, result in such effect, it was not conduct in public office, even if the possible effect of the conduct was that somebody else might take action with an adverse effect upon the complainant. 162 The use of the term "power or authority" in Calveley, and the statement in Garrett that (the tort of misfeasance in public office) has at its base conscious disregard for the interests of "those who will be affected by official decision making", assist in determining the meaning of the word "power" in the cases to which I have referred. The definition of that word in the Oxford English Dictionary (2nd ed) discloses two relevant meanings. They are: Ability to do or effect something or anything, or to act upon a person or thing; and Authority, given or committed; hence, sometimes, liberty or permission to act. 163 The first definition reflects the view in Garrett that the tort is concerned with effects on people. The second focusses on authority, a word used in Calveley. In my view, the word "power" is used in the cases to describe the capacity of a public office-holder to act in such a way as to produce an effect on another's rights or interests. I accept that the power need not be expressly conferred by statute. I accept that there will be cases in which the "misfeasance" is a failure to act. However the party alleging misfeasance in public office must prove that the relevant conduct was "in public office". In the usual course, the matter would be addressed in the pleading. It would not necessarily be enough to say that X was a public officer, and that he or she acted with malice towards the relevant party. It would generally be necessary that the relevant party plead the facts which demonstrated that the conduct occurred in public office. That enquiry might involve an examination of the functions of the agency in which the public officer works, and the duties assigned to him or her within that agency. 164 The difficulty in the present case is identification of the basis upon which it is said that Mr Friend's conduct occurred in the performance of his function as chief executive officer of the Shire Council. It was not demonstrated that it was any part of the Shire Council's function to safeguard the availability of pharmaceutical services in the area in question. The responsibility for that function clearly lay with the Pharmacy Board and perhaps, the Health Department. Nor was it demonstrated that any such function was part of Mr Friend's function as chief executive officer. General statements as to functions and powers of a local authority are hardly likely to justify its interference in matters which are the responsibility of the state government and its agencies. 165 No doubt it will be politically convenient, from time to time, for a local authority to use established lines of communication with other levels of government, to convey concerns about particular matters, whether such concerns are held by the authority itself, or by its voters. It was in this context that the primary Judge concluded that the relevant conduct did not occur in the exercise of power or functions attaching to Mr Friend's public office or to that of the Shire Council. There may well have been good political reasons for the Shire Council to deal with the perceived problem. It may be that other government agencies would be more likely to listen to the complaints of a local authority, or its chief executive officer than to a private citizen. However the relevant conduct was no more performed in public office than was the preparation of a report in Calveley or the reporting of a conversation in Emanuele. Further, it was not conduct which could adversely affect anybody. Only conduct by officers of other agencies could have had that effect. 166 The appeal should be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

SCHEDULE OF PARTIES WAD 734 of 2015 Respondents Fourth Respondent: Frank Peczka Fifth Respondent: Peter Mitchell

Trade Practices Act 1974(Cth)s 52

Fair Trading Act 1987(WA)s 10

Pharmacy Act 1964(WA)ss 31A, 31E, 32

Poisons Act 1964(WA)s 54

5.94(n), (p), 5.95(3), 5.96). The Local Government (Administration) Regulations 1996(WA)

The 2010 trespass claim - Mr Nyoni's submissions 53 Mr Nyoni's amended notice of appeal did not challenge the primary judge's findings in relation to the March 2010 disconnection of the electricity supply. Mr Nyoni argued in relation to the 14 October 2010 disconnection that the primary judge failed "to see the obvious link between Peter Mitchell and the Shire. Nowhere in the decision is it ever suggested that Peter Mitchell disconnected power without Shire involvement". Mr Nyoni submitted that his Honour erred in failing to find that Mr Friend and Mr McDonnell had authorised, procured or acted in concert with Mr Mitchell in his trespass on 14 October 2010 and that all three of them had contravened s 52 of the Trade Practices Act 1974 (Cth) in doing so. 54 Mr Nyoni argued that the primary judge had erred when he found that "Mr Friend's conduct amounted to no more than advising third parties of Mr Mitchell's intent to engage in a certain course of conduct". He contended that his Honour misapplied Fish & Fish Ltd v Sea Shepherd UK [2015] AC 1229 in characterising Mr Friend's conduct of sending the 14 October 2010 email as having no causative or contributory effect on Mr Mitchell's conduct in entering the pharmacy for the purpose of disconnecting the electricity. Mr Nyoni argued that Mr Friend, Mr McDonnell and Mr Mitchell had a common design because they were all complicit in wanting Mr Mitchell to do the acts that constituted the tort of trespass. Mr Nyoni submitted that this inference, of common design, should be drawn because Mr Mitchell did not go to other businesses or premises in Kellerberrin, other than the Shire offices, to seek assistance in relation to the disconnection of power to the pharmacy.

The misfeasance claim - background 62 Mr Nyoni claimed also that the Shire, Mr Friend and Mr McDonnell engaged in the tort of misfeasance in public office in relation to Mr Mitchell's disconnection of the electricity supply to the pharmacy on 14 October 2010. Mr Nyoni contended that: each of Mr Friend and Mr McDonnell, as a public officer: (1) authorised or procured, or acted in concert with, Mr Mitchell to engage in the acts constituting his trespass at the pharmacy premises on 14 October 2010; (2) directly or indirectly, by assisting Mr Mitchell to produce and despatch his letter of 14 October 2010, communicated misleading information to each of the Department and the Pharmaceutical Council, namely that the electricity supply would be, or had been, disconnected without informing the recipients that the disconnection was not attributable to any default by Mr Nyoni; (3) engaged in the conduct in (1) and (2) with the intention of harming Mr Nyoni; conduct of each of Mr Friend and Mr McDonnell caused the Department and Pharmaceutical Council to be misled into believing that the disconnection had occurred by reason of the fault of Mr Nyoni; Mr Nyoni's reputation had been harmed by reason of that conduct of Mr Friend and Mr McDonnell. 63 The primary judge rejected Mr Nyoni's claim that each of Mr Friend and Mr McDonnell authorised, procured or acted in concert with Mr Mitchell in the October 2010 trespass. Because we have upheld his Honour's rejection of that allegation, it is not necessary to consider this aspect further on the misfeasance claim. 64 The primary judge rejected Mr Nyoni's case that Mr McDonnell had any involvement in Mr Friend's acts and conduct on 14 October 2010 in producing and despatching the email advising Mr Bateman (of the Department) and Mr van Bronswijk (of the Pharmaceutical Council) of the disconnection of the electrical supply. Accordingly, his Honour dismissed the misfeasance claim against Mr McDonnell. 65 His Honour referred to his earlier findings that, on 14 October 2010, Mr Friend had: procured the production and despatch of Mr Mitchell's letter; sent the email to Mr Bateman and Mr van Bronswijk; intended, when participating in those communications, to harm Mr Nyoni by causing the two regulatory authorities to take action against him as a consequence of the disconnection of the electricity supply. 66 However, the primary judge reasoned that Mr Friend had not acted, when he engaged in that conduct, in exercise of his powers attaching to a public office. His Honour followed what Lord Bridge of Harwich had held in Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 at 1240-1241 and Wilcox, Miles and RD Nicholson JJ had held in Emanuele v Hedley (1998) 179 FCR 290 at 300 [34] to conclude that it was an essential element of Mr Nyoni's cause of action that, in acting as he did, Mr Friend exercised a power attaching to his public office. Therefore, the primary judge dismissed the misfeasance claim.

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.

Nyoni v Shire of Kellerberrin

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