The proposed Further Amended Statement of Claim
28 A further consideration relevant to the exercise of the discretion to extend time now sought to be exercised by the Applicant is the form and content of her proposed amended pleadings which were said to be available on 6 September 2012. The Court was informed that, between 6 September and the date of the hearing of the present Interlocutory Application, further amendments to the proposed pleadings had taken place.
29 The Court, it is considered, is not confined to a consideration of (for example) matters going to past defaults and explanations for non-compliance. The Court can also look forward and take into account the form and content of the pleadings to be filed - if an extension of time for compliance were granted.
30 It may be, however, that a distinction should be drawn, between:
deficiencies in a proposed pleading which can be the subject of a request for particulars or proposed causes of action in respect to which there is a readily identifiable defence. In such cases it may be that the preferable course is to grant the extension of time sought and leave it to a respondent to either request further particulars, file a defence or to seek to have the pleading struck out; and
deficiencies in a proposed pleading which amount to a failure to plead each of the elements of a cause of action.
It may be that such a distinction can be illusory in practice - the fate of a pleading which may plead all of the elements of a cause of action but which (for example) is clearly out of time is perhaps in no different position to a pleading which fails to disclose a cause of action. And it may be that a pleading which requires further particulars to be provided in respect to a single cause of action should be viewed differently to a pleading which requires further particulars to be provided in respect to multiple causes of action. Prejudice to an opposing party which could be readily addressed if there were perhaps a single deficiency may attract a more favourable exercise of the discretion to extend time than a pleading which contains a series of deficiencies such that the prejudice to the respondent is more in the nature of an accumulated or aggregated prejudice.
31 When exercising a discretion directed to alleviating an "injustice" between the competing interests of opposing parties where a proceeding has been dismissed pursuant to a self-executing order, it may be that a court should lean in favour of extending time even though a pleading may still suffer from some deficiencies which can be rectified by the giving of further directions.
32 The course pursued in the present proceeding is to not focus to any great extent upon those deficiencies which could be remedied by future directions. Even so viewed, however, it is concluded that the deficiencies which remain in the proposed amended pleading are such that they count against any exercise of discretion in favour of the Applicant.
33 Those deficiencies start at the very outset of the proposed Further Amended Statement of Claim. Paragraph [1] is in the following terms (without alteration):
At all material times the Respondent conducted a quarantine inspection service pursuant to s51(ix) of the Commonwealth of Australia Constitution Act (1901) (Cth) (the Constitution). Power pursuant to s51(ix) is exercised "subject to this Constitution,"
Paragraph [3] then provides as follows (again without alteration):
There is an implied term in the Constitution that the Respondent will not intentionally cuase (sic) harm to those persons it employs pursuant to its powers.
In the course of oral submissions, it was said that this term was "an implied term in the Constitution preventing the Commonwealth or prohibiting the Commonwealth from intentionally harming those it employed incidental to the powers that it is given under the placita in section 51, most specificially in this instance section 51(ix), which gives the Commonwealth the power to conduct a quarantine service". Section 51(ix) of the Constitution confers a non-exclusive power upon the Commonwealth Parliament to make laws "with respect to … quarantine": Ex parte Nelson (No 1) (1928) 42 CLR 209 at 217-218 per Knox CJ, Gavan Duffy and Starke JJ. And, although it may now be accepted that the Constitution may be the source of a range of implied freedoms (eg. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Hogan v Hinch [2011] HCA 4 at [49], 243 CLR 506 at 543-544 per French CJ), no authority (perhaps not surprisingly) was cited to support the implied term now advocated by Counsel for the Applicant.
34 The difficulty occasioned by such a pleading is that it leaves unspecified whether paragraphs [1] and [3] are intended to plead a cause of action founded upon such an implied term and a relevant breach. If so, no breach is pleaded. The difficulty was addressed to some extent by Counsel for the Applicant accepting that the pleading was more appropriate to a reply to an anticipated defence that may be filed by the Respondent. It was anticipated by Counsel that the Respondent would rely upon s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) which provides as follows:
Action for damages not to lie against Commonwealth etc. in certain cases
(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:
(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
(b) the loss of, or damage to, property used by an employee resulting from such an injury;
whether that injury, loss or damage occurred before or after the commencement of this section.
(2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section.
(3) If:
(a) an employee has suffered an injury in the course of his or her employment; and
(b) that injury results in that employee's death;
subsection (1) does not prevent a dependant of that employee bringing an action against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee in respect of the death of the first‑mentioned employee.
(4) Subsection (3) applies whether or not the deceased employee, before his or her death, had made an election under subsection 45(1).
The intent of paragraphs [1] and [3] (it was submitted) was to foreshadow a reply that that provision was beyond the Constitutional competence of the Commonwealth Parliament. Even if that is so, paragraphs [1] and [3] are not a proper manner by which to plead the invalidity of s 44.
35 On any view of it, paragraphs [1] and [3] of the proposed Further Amended Statement of Claim would be embarrassing if they were to remain.
36 A second and separate difficulty is occasioned by the manner in which it was proposed to plead the tort of conspiracy. Paragraphs [9]-[25] set forth the material facts said to give rise to this proposed cause of action. One deficiency was readily acknowledged at the outset by Counsel for the Applicant - namely any pleading of conspiracy would need to sustain a conclusion that the "predominant purpose" of the conspiracy was to injure the Applicant. In discussing the elements of the tort of conspiracy, Kaye and Beach JJ in Little v Law Institute of Victoria (No 3) [1990] VR 257 at 271-272 observed:
It follows that a statement of claim pleading tortious conspiracy must allege an agreement or combination between defendants to injure or harm the plaintiff, overt acts of the defendants in furtherance of the agreement or combination, and consequential injury or damage suffered by the plaintiff: … In the present case the allegations contained in para. 11 of the statement of claim constitute a pleading of an agreement or combination to injure the appellant. For the purposes of the pleading summons, it may be assumed that the appellant, at the trial, would prove the existence of an agreement or combination between the respondents to injure him in the manner alleged. However, the pleadings do not disclose a cause of action unless the allegations of overt acts as pleaded are capable of sustaining the conclusion that the predominant purpose of the respondent's agreement was to injure the appellant in the practice of his profession.
See also: Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 150 per Drummond J. Further difficulties confronting the Applicant's proposed pleadings include whether the element of "intent" is sufficiently pleaded by simply pleading that named persons "wrongfully and maliciously conspired …" and whether the Respondent Commonwealth can be vicariously liable for the conspiracy alleged: McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 at [198], 165 ALR 409 at 446 per Weinberg J. It is, however, unnecessary to resolve any question as to whether these difficulties would provide further reason for relieving the Applicant from her non-compliance with the orders made on 8 August 2012.
37 A third difficulty emerges from the manner in which the Applicant formulates its cause of action for misfeasance in a public office. The elements of the tort of misfeasance were summarised in Porter v OAMPS Ltd [2005] FCA 232 at [103], 215 ALR 327 at 352 by Goldberg J as follows:
The elements of the tort of misfeasance in public office are:
• there is a public officer;
• who owes a public duty (including to the plaintiff as a member of the public);
• which the public officer has breached;
• the breach of duty has caused loss or damage to the plaintiff; and
• the public officer breached the duty with the intention of causing harm to the plaintiff or with the knowledge that he or she was acting in excess of his or her powers.
In Rush v Commissioner of Police [2006] FCA 12 at [121], 150 FCR 165 at 197-198 Finn J further addressed the elements of the tort when he noted:
… the tort can take two forms. In one form (that of "targeted malice") it must be shown that the public officer in question has acted as such with an actual intent to cause injury to a person or persons. In its alternate form it must be shown either that the officer has actual knowledge both that his or her action was beyond power and would cause or be likely to cause injury or else that the officer has acted with reckless indifference both to the possibility his or her action was beyond power and to the possibility that that action would cause or be likely to cause injury …
An allegation of misfeasance in public office is, self-evidently, a serious allegation: Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) [2010] FCA 361 at [66], 267 ALR 494 at 512.
38 The confined nature of the tort of misfeasance, however, is constantly to be borne in mind. In Northern Territory of Australia v Mengel (1996) 185 CLR 307 at 347, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ observed:
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.
39 One difficulty of present relevance is the absence of any allegation that the officers identified in paragraph [7] of the proposed Further Amended Statement of Claim are "public officers" for the purposes of the tort of misfeasance or that there has been an abuse of any "public power" or "public duty". The nature of the "public office" is inextricably linked with the tort being confined to an abuse of "public power": Leerdam v Noori [2009] NSWCA 90, 227 FLR 210. Spigelman CJ there observed:
[3] The concept of "public office" or "public officer" appears in various legal contexts, both statutory and at common law: see the summary of the wide range of case law by Byrne J in R v McCann [1998] 2 Qd R 56 at 67-74. There is no authoritative statement of a test for determining what constitutes a public officer for purposes of the tort of misfeasance. Nor is one needed. In almost all cases the answer will be obvious. (See Society of Lloyd's v Henderson [2008] 1 WLR 2255 at [23]. The most detailed consideration of Australian authorities is T Cockburn and M Thomas "Personal liability of public officers in the tort of misfeasance in public office" (2001) Torts Law Journal 80, 245.)
[4] Where there is any doubt about whether a particular person occupies a "public office" for purpose of the tort, it will ordinarily be enough to approach the matter on the basis that the tort is "concerned with" the "misuse" or "abuse" of public power (Sanders v Snell (1998) 196 CLR 329 at [37]) or that the tort is "concerned with performance of public duties" (Sanders v Snell at [39]). There is no relevant difference, as these citations from the joint judgment in Sanders v Snell indicate, between authorities which use the language of "duty" and those which use the language of "power". The formulation "abuses his office" is to be found in the foundational authority Henly v Mayor of Lyme (1828) 130 ER 995 at 1001.
The allegation that Counsel for the Applicant relies upon to satisfy the requirement that the named officers are "public officers" is the allegation that the named persons were "employed" by the Respondent and that those persons had "line management responsibility for the Applicant…". Such allegations, it is concluded, fall well short of an allegation that the named persons occupied a "public office". More importantly, there is an absence of any allegation or identification of the "public power" or "public duty" being exercised. Nor is it apparent why the Commonwealth would be liable for their conduct. It may be accepted that in some circumstances the Commonwealth may be vicariously liable for the tort of misfeasance in public office: McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 at [250]-[253], 165 ALR 409 at 458 per Weinberg J. See also Moder v Commonwealth of Australia [2012] QCA 92 at [65]-[74], 261 FLR 396 at 413-416. An allegation that the Respondent "employed" the officers named, however, falls well short of any allegation that would expose the Respondent in the present proceeding to vicarious liability.
40 These are just some of the deficiencies in the proposed Further Amended Statement of Claim. Further deficiencies were previously brought to the attention of those representing the Applicant in correspondence from the solicitors for the Respondent dated 12 September 2012. It is not necessary to record in any greater detail the other criticisms which have been made by the Respondent of the proposed pleading. It is sufficient, for present purposes, to conclude that the deficiencies in the proposed pleading - some of which are readily acknowledged by Counsel for the Applicant - means that the Applicant continues to fail to adequately plead a number of the causes of action that she seeks to rely upon.
41 If leave to amend were sought to plead the causes of action set forth in the proposed Further Amended Statement of Claim, such leave would be refused. Even if it were appropriate to adopt a less exacting standard when considering whether a party should be relieved from the consequences of a self-executing order, the pleading presently under consideration would fail to meet even that less exacting standard.