Accordingly it was submitted that having regard to the mode of retrial undertaken there can be no question of any tortious liability arising from any allegation that Sanders knowingly acted beyond power. The Chief Justice, it was said, made no specific finding that Sanders acted either knowingly or unlawfully, or that he acted without honesty.
105 The basis upon which the Chief Justice did arrive at his conclusion appears from par 94 in his reasons for judgment, which has already been set out. This is the critical paragraph and it bears repetition:
'I find that the defendant actually intended to cause harm to the plaintiff by peremptorily and unlawfully removing him from office. The defendant's actions and statements at the time are consistent with no other conclusion.'
As indicated in pars 92 and 95 of his judgment, set out at [67] above, his Honour treated this case as one of "targeted malice".
106 As noted earlier the concept of "targeted malice" as explained by Lord Steyn, involves the exercise of public power for the improper or ulterior purpose of injuring a person or persons. An example of such conduct is that found by Debelle J in Rowan v Cornwall. In the present case the Chief Justice made findings of fact that Sanders intended that Snell's contract "… be terminated at the earliest possible date" (at [49]) and at [57] he said:
'… in my opinion … the defendant intended to bring about a situation whereby the plaintiff was, in effect, summarily and immediately dismissed.'
His Honour observed that no reasons for dismissal were ever given and no attempt made in the proceedings to "justify" the termination of Snell's employment by alleging or by seeking to prove his incompetence or misconduct (at [59]). His Honour also found that publicity of the dismissal by the Minister and the Bureau in an apparently summary fashion was suggestive of incompetence or misconduct coupled with the suggestion of possible criminality and must have caused the plaintiff not insubstantial loss (at [71]). Importantly, at [72] his Honour said:
'In my opinion, the defendant's conduct, even if it fell short of malicious action (in the sense that the defendant apparently believed that the Bureau was not soundly managed) was contumelious behaviour which entirely disregarded the rights of the members of the Bureau and of the plaintiff to be given a reasonable opportunity to be heard in answer to the criticisms that had been made.'
This finding was made in the context of his Honour's conclusion that Snell was entitled to exemplary damages.
107 It is true that actual knowledge of unlawfulness on the part of the public officer is not an element of the first form of the tort based on targeted malice. And that may be because, as Lord Hobhouse said in Three Rivers in a passage cited by the Chief Justice at [86]:
'Here the official does the act intentionally with the purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable. This limb does not call for explanation. The specific purpose of causing loss to a particular person is extremely likely to be consistent only with the official not having an honest belief that he was exercising the relevant power lawfully. If the loss is inflicted intentionally, there is no problem in allowing a remedy to the person so injured.'
108 But in the particular case of a decision by a public officer to terminate or direct the termination of a person's contract of employment it is not enough, in order to make out the tort, to show that the public officer wanted to terminate the contract and acted in excess of power in doing so. If that were sufficient, any ultra vires decision by a public officer having a foreseen adverse effect on a person would constitute misfeasance in public office, a consequence quite contrary to the close confinement of liability to which policy and principle point: see Mengel at 347. The termination of a contract may be integrally involved in the exercise of the statutory power to give a direction to that effect and the purpose of such a direction may quite legitimately be to end the person's employment for any one of a variety of reasons within the proper scope of the power. 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" for the exercise of the power: see Weinberg J in McKellar v Container in the passage we have previously cited at [99]. Since the essence of the tort in each of its forms is the "dishonest abuse of power", it cannot be sufficient merely to show that harm was intended when harm of that nature would necessarily result from the proper exercise of the power: see Mengel at 357 per Brennan J; Three Rivers at 7 per Lord Steyn; L (a child) v Reading Borough Council (2001) 1 WLR 1575 at 1588; Rowan v Cornwall at 357 [589]; and Sanders v Snell (1998) 196 CR 329 at 344.
109 There is nothing in any of the Chief Justice's findings of fact to support a conclusion that Sanders intended to use the termination of Snell's contract as a means of inflicting harm upon him otherwise than in good faith. Sanders wanted him out of the job, rightly or wrongly, because of the views he held about him in relation to that job. As his Honour expressly found, at [54] of his judgment:
'At all times, in my opinion, the defendant held the firm conviction that the Bureau and its Executive Officer especially, were, in the words of the defendant's own evidence, "incompetent" and that he, the defendant, should procure the termination of the plaintiff's employment at the earliest date.'
In our opinion the conclusion of targeted malice cannot be sustained and the finding of misfeasance in public office on that basis cannot be supported.
110 The question then arises whether the conclusion of misfeasance in public office could be supported by reference to the criteria for the second form of the tort. There is the related question whether this Court can determine that issue or whether it has to be remitted for further hearing and determination. Counsel for Snell understandably expressed his reservations about the possibility of yet another trial. He also observed, as was the case, that there was no dispute as to the conversations that had taken place or the actions that occurred. In our opinion the question whether the second form of the tort was made out is a matter of inference from facts which were not in substantial dispute and in respect of which both parties have had ample opportunity to put their cases, both as to evidence in the first trial and submissions in the second.
111 The direction given by Sanders to the new Bureau was capable of being implemented consistently with the terms of Snell's contract. The Full Court so found in rejecting the contention that he had induced a breach of the contract of employment and the High Court agreed. The issue of unlawfulness was therefore confined to the want of procedural fairness in connection with the direction to the reconstituted Bureau.
112 The learned Chief Justice found (at [89]) that there was an abuse of the statutory power to give directions to the Bureau by virtue of the failure to afford Snell procedural fairness. His Honour also found that Sanders had been advised or perhaps warned by another Minister, Mr King, that he should ensure that Snell receive natural justice. This finding, as noted earlier, was made in the context of his assessment of exemplary damages. The High Court said of this finding however that neither Mr King nor Mr Nobbs, who also counselled natural justice, was a lawyer. Neither was purporting to give legal advice to Sanders. They gave the advice they did because they thought it was the fair thing to do. They did not suggest that it was a condition of the validity of the direction. It is not suggested, in any of the findings of fact made by his Honour, that Sanders had received legal advice about the issue of procedural fairness. There was however a finding that he sought the assistance of Mr Wright, the Secretary to the Government, who had a legal background. But that was in connection with the question whether payment of two months' salary could be made in lieu of notice.
113 In his evidence-in-chief Sanders was asked whether, when he signed the direction he gave to the new Bureau, he had a belief about whether the direction was legal or illegal. He said:
'My belief was then that it was legal, it was very lawful.'
Asked the basis for that belief, he said it was the advice that he had received from Mr Wright.
114 Sanders was asked in cross-examination whether in carrying out his ministerial functions in the past he had heard of "natural justice". He said he had not had occasion to. The concept of "fairness" had been discussed with him in the context of immigration matters but he did not recall receiving any advice in such matters about natural justice. He was aware that his obligation and duty as a minister was to act fairly at all times. Later in the course of cross-examination there was discussion between the Chief Justice and Sander's counsel about whether or not the power of termination was subject to the requirements of procedural fairness. Counsel for Sanders submitted that there was no implication of procedural fairness. It was not put to Sanders in cross-examination that he had any knowledge of the requirement to observe procedural fairness as a condition of the power to give the direction that he did to the new Bureau.
115 In closing submissions on the retrial before the Chief Justice, counsel for Snell relied primarily upon "targeted malice", that is to say the first form of the tort of misfeasance in public office. The final submissions, however, also relied, by way of alternative, upon the second form of the tort, referred to in the submissions as "the second limb". In this respect it was said:
'This limb deals with reckless indifference both as to knowledge of actions as being outside power and as to the consequences to the plaintiff from those actions. In this regard the plaintiff relies on a number of actions, aimed at removing him from office, being outside power. Looming large throughout the course of the various actions of the defendant is his total and deliberate failure to comply with the rules and the spirit of natural justice or procedural fairness as it is now alleged. At all relevant times, the defendant acted deliberately and intentionally to prevent and deprive the plaintiff of any opportunity to make any explanations relating to the factors and materials which the defendant was claiming justified and supported the action being taken of immediate removal from his office as Executive Officer of the Bureau.'