The irredeemable flaw in these pleadings
88 Those drafting pleadings are expected to know and understand the basic rules of pleading, and the distinction between material facts and particulars is one such rule. The distinction remains clear in r 16.02(1) and r 16.41, and is entrenched in authorities from all superior courts.
89 Those drafting pleadings can also be expected to know and understand the importance of rules such as r 16.42, reflecting the gravity of allegations such as misfeasance. While r 16.42 does not expressly refer to misfeasance in public office, the conduct to which it does refer bears the same character. There can be no doubt that this cause of action requires a high degree of specificity about the alleged state of mind of each of the individual respondents. As the authorities above reveal, in modern case management the Court looks to the substance of a party's complaints about a pleading, measured against the basic functions the pleading is intended to serve, and considered in the context of the nature and gravity of the allegations made. Those approaches are reflected in the observations of Drummond J in Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499; [1999] ATPR 41-691 at 42,827-42,829, and von Doussa J in Beach Petroleum NL v Johnson [1991] FCA 839; 105 ALR 456 at 466. Flexibility in the Court's approach does not equate to tolerance of pleadings which fail to fulfil those basic functions.
90 And in some cases, this being one, these failures in the pleadings may well disclose the absence of a cause of action with any reasonable prospects of success. It is not always the case that the two propositions will go hand in hand, but in cases such as the present, they do.
91 Although the respondents are correct that failures to plead necessary or sufficient material facts cannot be cured by the insertion of particulars and such a pleading will remain non-complaint with the Rules, if all that has occurred is that the pleader has included material facts under a heading of "Particulars", but nevertheless in substance they constitute material facts, then it would be a triumph of form over substance if that became the basis for a pleading being struck out without leave to re-plead, or of a successful summary judgment application. I raised this point with the respondents' counsel during oral argument and quite properly no submissions were pressed that the form of the FASOC, in its divisions between pleading and particulars, offered a sufficient ground for the orders sought. The respondents contended the flaws were more fundamental than that, and they are correct.
92 Accordingly, in considering the mental state pleadings in the FASOC, which are extracted at [79], [81], [84] and [87] above, I have assumed, in the applicants' favour, that what is set out under "particulars" may include material facts and should be considered on that basis.
93 First, the formulation used in each principal allegation is that each of the respondents "recklessly disregarded the means of ascertaining the extent of his power", a formulation which is taken from the reasons of the plurality in Mengel (at 347):
The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.
It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm.
If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power. However, that is not what was put in this case. The argument was that it is sufficient that the officer concerned ought to have known that he or she lacked power.
(Footnotes omitted.)
94 The applicants submit:
Accordingly, the FASOC alleges the lesser "recklessness" state of mind endorsed by the majority in Mengel. The Applicants do not allege actual knowledge of unlawfulness on the part of the individual Respondents. This distinction is significant for the purposes of any consideration of the adequacy of the pleas concerning the individual Respondents' states of mind with respect to the alleged unlawfulness: cf the assertion at RS [15] to the effect that reckless indifference and knowledge are "sufficiently equivalent" - the legal consequences of each may be the same, but the forensic foundations and thus proofs required are not.
(Original emphasis.)
95 The respondents submit that this argument misunderstands the passage in Mengel which I have extracted at [93] above. I agree. There is no "lesser" recklessness identified by the plurality in Mengel. The question confronting the Court in Mengel was whether a state of mind distinct from actual knowledge of the absence of power could suffice for misfeasance. Brennan and Deane JJ were clearly of the view that reckless indifference was sufficiently close to actual knowledge or intention, in the sense their Honours explained (and to which I have referred above).
96 In Three Rivers at 224, in explaining the concept of "malice" in the tort, Lord Hutton equated reckless indifference to wilful blindness, albeit in this passage, as to likelihood of injury rather than unlawfulness. However the point to be emphasised is that in no case has it been suggested that there are two kinds of reckless indifference - a "greater" one and a "lesser" one, which can be more easily proven. There is only one form of reckless indifference available as the mental element in the tort of misfeasance, "reckless indifference" being a phrase well understood in the law, and (as Lord Hutton did) generally equated with wilful blindness. That is the only alternative mental state to actual malice, or a conscious exceeding of power.
97 The Full Court in Fernando indirectly suggested (at [108]) that in Mengel, the plurality's nomination of reckless indifference as sufficient was "tentative". Whether or not that is the appropriate characterisation, as the respondents submitted it is clear from the passage extracted at [93] above, and earlier passages in the plurality's reasons (especially at 342) that the plurality is drawing a comparison with developments in the "economic torts", and the development of the mental element in that context as incorporating constructive knowledge of the terms of a contract and reckless disregard of those contractual terms - whether after inquiry, or by reason of there being no inquiry.
98 The footnoted reference given by the plurality in Mengel is to Lord Denning's judgment in Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 at 700-701. Lowthian concerned "labour only" subcontracting, where an employer alleged the union officials (Lowthian and others) were attempting to have the subcontract terminated, so that union labour could be employed directly, and were doing so by putting pressure on the subcontractor to terminate the contact with the employer. Lord Denning said:
Such being the facts, how stands the law? This "labour only" subcontract was disliked intensely by this trade union and its officers. But nevertheless it was a perfectly lawful contract. The parties to it had a right to have their contractual relations preserved inviolate without unlawful interference by others: see Quinn v. Leathem, by Lord Macnaghten. If the officers of the trade union, knowing of the contract, deliberately sought to procure a breach of it, they would do wrong: see Lumley v. Gye. Even if they did not know of the actual terms of the contract, but had the means of knowledge - which they deliberately disregarded - that would be enough. Like the man who turns a blind eye. So here, if the officers deliberately sought to get this contract terminated, heedless of its terms, regardless whether it was terminated by breach or not, they would do wrong. For it is unlawful for a third person to procure a breach of contract knowingly, or recklessly, indifferent whether it is a breach or not. Some would go further and hold that it is unlawful for a third person deliberately and directly to interfere with the execution of a contract, even though he does not cause any breach. The point was left open by Lord Reid in J. T. Stratford & Son Ltd. v. Lindley. It is unnecessary to pursue this today. Suffice it that if the intention of the defendants was to get this contract terminated at all events, breach or no breach, they were prima facie in the wrong.
(Emphasis added; footnotes omitted.)
99 No second, "lesser" kind of reckless indifference is articulated in these passages, nor should the plurality's reasons in Mengel be seen as creating one, especially given this case is identified as the source of the phrase used in Mengel. Reckless indifference equates to wilful blindness, and the deliberate character of the mental state remains the core element of the tort.
100 The applicants did not point in their submissions to any case since Mengel which has identified, let alone endorsed a second, "lesser" form of reckless indifference as a state of mind sufficient to make out the mental element of the tort of misfeasance in public office.
101 Fernando was a misfeasance case put primarily on the basis of reckless indifference, rather than actual knowledge of excess of power, with an intent to harm a person: at [112]. At [115], the Court described what Mr Fernando had to prove in the following way:
In the context of the present case this required him to establish that the Acting Minister knowingly acted in excess of his power in the knowledge that the cancellation of Mr Fernando's visa would cause him injury or would be likely to do so or that the Acting Minister acted with reckless indifference to the possibility that he lacked power to make the cancellation decision when he did.
(Emphasis added.)
102 That kind of description was repeated by the Full Court at [121], where Mr Fernando's contention was described again:
[H]e contended that the Acting Minister proceeded to make the decision with reckless disregard to the question of whether or not he had the necessary jurisdiction to do so.
(Emphasis added.)
103 This is the language of wilful blindness, not any "lesser" mental state.
104 I accept that in McKellar, Weinberg J used the phrase on which the applicants rely. At [257], his Honour said:
At the very least, it must be pleaded that the minister has recklessly disregarded the means of ascertaining the extent of his or her power - see Mengel at CLR 347, and not that he has merely acted with "reckless indifference" to the applicants, as pleaded. Mere negligence in failing to appreciate that the minister is exceeding his powers is not sufficient for this tort.
105 That finding was made after a finding in [256] to the effect that "it is not sufficient to plead that the minister ought to have known that he was exceeding his powers or contravening designated Commonwealth laws". The distinction his Honour was drawing was the same as the one drawn in Mengel. His Honour was not suggesting there was some lesser kind of deliberateness which could satisfy the mental element of the tort.
106 A further, and additional, submission made by the applicants, at least in relation to MIPO 1 and MIPO 2, is that the individual respondents:
(a) "considered the obligation to afford procedural fairness to the Applicants and the Group Members and decided not to afford it to them"; and
(b) "were reckless as to whether it was lawful to cause, direct, authorise or fail to prevent Commonwealth officers applying or requesting RPC visas in circumstances where there was no statutory or executive power to do so".
107 These contentions appear to refer to the allegations in the particulars of each of the mental state pleadings for these MIPOs (see [79] and [81] above) that the respondents "considered and disregarded" the unlawfulness of the conduct, whether their own (in directing etc) or that of the Commonwealth officers (in, for example, not affording procedural fairness). Those pleadings appear to read as an allegation that the respondents "considered and disregarded" the potential or prospective unlawfulness of the conduct. I accept the respondents' submission that these kinds of allegations do not reach the level of misfeasance: even if made out, they could not satisfy the element of reckless indifference or wilful blindness.
108 Even assuming the propositions currently in the particulars could be reframed as part of the pleading itself, and using as an example MIPO 2 as described at [99] of the FASOC (see [81] above), the highest the pleading reaches is the following kind of propositional steps. While there are numerous permutations throughout the pleadings, none in my opinion are so variable that the following example (Mr Burke and the initial RPC visa) is not fairly representative. The steps are:
(a) Mr Burke was the responsible Minister from 1 July 2013 to 18 September 2013.
(b) Mr Burke's responsibilities included administration of the Department.
(c) The administration of the Department included implementation of Australia's obligations under the MOU and the Administrative Arrangements.
(d) From these facts it can be inferred Mr Burke "authorised or directed or caused" relevant Commonwealth officers to apply for the RPC visas (or failed to prevent them from doing so).
(e) Such directions were an incident of Mr Burke's public office as a Minister.
(f) There was no lawful authority for a Commonwealth officer to apply for an RPC visa (for the various reasons set out at [96]-[98] of the FASOC).
(g) By reason of Mr Burke's directions etc to those Commonwealth officers, he "recklessly disregarded the means of ascertaining the extent of his power" to give those directions etc.
(h) The reckless disregard is to be inferred:
(i) from his position as the responsible Minister, which "necessarily involved giving consideration to and taking legal advice and briefings on matters concerning the proper implementation of those obligations in accordance with law";
(ii) from the "substantial expenditure of public money" on the regional processing, from which it can be inferred Mr Burke "scrutinised the details of the RPC visa application and request system";
(iii) from Mr Burke's involvement in the negotiation of the regional processing arrangements, from which it can be inferred Mr Burke "scrutinised the details of the scheme"; and
(iv) from Mr Burke's role in giving directions under s 198AD(5) of the Act concerning the taking of offshore entry persons to Nauru.
109 Thus, and continuing to take Mr Burke as the example, the most that is pleaded as relevant to Mr Burke's state of mind when giving directions etc to the Commonwealth officers is that Mr Burke received legal advice, and scrutinised the details of the regional processing scheme, including the RPC visa aspects. Those allegations of fact go no further than describing what would be expected of a responsible Minister involved in the implementation of a policy such as this.
110 Without suggesting this would be sufficient, as I pointed out to the applicants' counsel during oral argument, there is not even an allegation that legal advice was ignored. Of course, as senior counsel properly responded, the applicants have no factual basis for such an allegation. That is why there must be summary judgment for the respondents.
111 Other difficulties are also revealed. There is no pleaded connection between the state of mind the individual respondents are said to have had, and the identified unlawfulness. In other words: what is it that the individual respondents shut their eyes to? If, for example, the individual respondents are said to have shut their eyes to the (assumed) fact that s 198AHA did not authorise Commonwealth officers to apply for an RPC visa for each of the applicants, then the material facts which support that conclusory contention needed to be set out.
112 In a practical sense, in the context of what are on any view legally complicated propositions about unlawfulness, it is difficult to see what material facts could be pleaded, other than material facts connected with the provision of legal advice to the individual respondents, and the contents of that advice. It is difficult to see how else, at a practical and realistic level, the individual respondents could have acquired knowledge of the supposed unlawfulness of their proposed conduct (or that of their officers). There was no court decision which made out such unlawfulness. There was no clear and unequivocal statutory prohibition, of which they could be assumed to be aware.
113 If there was a basis for such a pleading, it could have been pleaded that the individual respondents were given specific legal advice that s 198AHA could not and did not authorise Commonwealth officers to apply for RPC visas and therefore (and the "therefore" is important, given it is not the officers themselves who are accused of misfeasance) the individual respondents could not lawfully direct the officers to apply for such visas, even though the Administrative Arrangements contemplated that process would occur. It would probably have been necessary to plead that there was no reasonable and rational legal view to the contrary of that advice. It would probably have been necessary to plead that each of the individual respondents was personally given, or informed of, that negative legal advice and its unequivocal nature. It would then probably have been necessary to plead that each of the individual respondents, having been so informed, consciously decided to ignore that advice. It may have been feasible, if there was a basis, to plead that the individual respondents, having been warned that the visa application process had no lawful basis in s 198AHA, expressly instructed their legal advisers not to provide them with any legal advice, and made it clear they were going to direct the officers to apply for visas, irrespective of whether s 198AHA authorised the applications or not - that they did not care at all whether the process was lawful. These are all hypothetical examples, but it is appropriate to set them out in order to demonstrate how far short of such allegations the applicants' pleadings fall.
114 As I have noted, senior counsel for the applicants quite properly accepted no such allegations could be made, because the applicants presently have no factual basis for them. The applicants have no factual material, he conceded, on which to ground such allegations. They hope to find a basis in discovered material. A pleading of this cause of action cannot be permitted to remain on the Court's record when it is based only on such an aspiration.
115 Finally, in terms of flaws in the applicants' case on the critical state of mind element in misfeasance, the authorities are clear that misfeasance will not be established where there is an alternate hypothesis consistent with an honest exercise of power. As the extract at [57] above indicates, and as might be expected for a tort dependent on establishing a deliberate state of mind in a respondent, there is no difficulty in framing a case in misfeasance by reference to inferences, provided a sufficient factual basis for the inferences is pleaded. While in Three Rivers Lord Millett described what is necessary for the tort to be proved at trial, he also made the point that the pleading must identify the primary facts to be proved. This basic level of symmetry between pleading and proof is fundamental. Without it, there is nothing but baseless speculation.
116 The same point was made by the Full Court in Fernando at [126]. As the stepping through of the FASOC example at [108] above indicates, and not unlike the situation in Polar Aviation (No 4) (see [114]) it appears that the highest the applicants can put their case of misfeasance is that the requisite state of mind for each of the individual respondents can be inferred from the fact (assuming it to be proved) that the conduct of the Commonwealth officers was beyond power. That falls far short of what must be pleaded and proved. At this level, the allegations are also consistent with an honest motivation on behalf of the individual respondents: see Polar Aviation (No 4) at [116]. There is nothing pleaded which, to use Lord Millett's phrase, "tilts the balance" towards dishonesty.