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[2021] TASFC 6
General information, not legal advice.
Supreme Court of Tasmania (Full Court)
2021-03-31
Blow CJ, Wood J, Martin AJ, Evans J, Crawford J
Original judgment source is linked above.
CITATION: State of Tasmania v MFC [2021] TASFC 6
Torts - Miscellaneous torts - Misfeasance in public office - Public servant investigating and reporting as to circumstances of child alleged to have been sexually assaulted - Claim for damages by foster parent against State - Whether arguable that foster parent has a cause of action.
Northern Territory v Mengel (1995) 185 CLR 307; Holloway v State of Tasmania [2006] TASSC 60, 15 Tas R 127, considered.
Judgment Number: [2021] TASFC 6
1 I agree with Martin AJ that this appeal should be dismissed. I agree with his Honour's reasons. I would like to add some comments about the Full Court's decision in Holloway v State of Tasmania [2006] TASSC 60, 15 Tas R 127 at 140-141.
2 The appellants in that case had made three complaints about the conduct of police officers, relating to three separate incidents. Subsequently they made a verbal application to the Police Internal Investigations Unit for a review of the handling by police officers of their three complaints. They subsequently sued the State of Tasmania for damages, alleging that the Commissioner of Police had committed the tort of misfeasance in public office in relation to the review, and that the State of Tasmania was liable to pay them damages in respect of the Commissioner's tort. The State successfully applied for their action to be summarily dismissed. Evans J concluded that it had no prospects of success: Holloway v Tasmania [2005] TASSC 90, 15 Tas R 127 at 129-139. There was an appeal to the Full Court. It had no merit at all. The appellants appeared without legal representation. At the conclusion of the hearing of the appeal, it was immediately dismissed. I gave the principal judgment, which was delivered orally. Crawford J (as he then was) and Tennent J agreed with me.
3 In that case, like this one, there was a statutory provision that made the State, not the tortfeasor, liable to pay damages if the tort had been committed in good faith. In this case, unlike Holloway, there is an assertion that a public officer committed the tort of misfeasance in public office by acting with reckless disregard to the extent of her powers. This case raises the question of whether acting in that way could be consistent with acting in good faith. There was no need for the Full Court to address that question in Holloway, and it did not do so. Similarly, there was no need for Evans J to address that question in Holloway at first instance, and his Honour appears not to have addressed it.
4 In Northern Territory v Mengel (1995) 185 CLR 307, the High Court left that question open. It may have been prudent for this Court to have acknowledged in Holloway that the situation where a public officer acts with reckless disregard to the extent of his or her powers might or might not be consistent with that officer acting in good faith. The absence of any comment as to that question does not justify Holloway being treated as authority in relation to that question.
6 In 2019 the respondent issued proceedings against the State of Tasmania (the appellant) seeking damages for misfeasance in public office, and negligence, alleged to have been committed by an officer of the Department of Health and Human Services (the officer). In January 2020 the appellant filed an application to dismiss the proceedings, and sought that judgment be entered for the appellant on the basis that the respondent's statement of claim did not disclose a reasonable cause of action.
7 Holt AsJ dismissed the application[1] and the appellant's appeal against that decision was dismissed by Estcourt J: State of Tasmania v MFC [2020] TASSC 23.
8 The appellant appeals against the decision of Estcourt J on the following grounds:
"1 His Honour erred in law in determining that the mental element of the tort of misfeasance in public office might be consonant with an 'honest attempt to perform the functions of [the] office' when the mental element of the tort cannot be so consonant.
2 His Honour erred in law in failing to identify and/or to apply the principle established in Holloway v State of Tasmania namely that the tort of misfeasance in public office cannot be in 'good faith' within the meaning of that phrase in s111 of the Children, Young Persons and Their Families Act 1997.
3 His Honour erred in law in failing to identify and/or to apply the principle in Sullivan v Moody, to the effect that a person in exercising powers under the Children, Young Persons and Their Families Act 1997 does not (and cannot) owe any duty (whether of the kind pleaded by the respondent, or otherwise) to take reasonable care to avoid causing harm to another person, such as the respondent, who is alleged to have harmed a child."
9 For the reasons that follow, in my opinion the appeal should be dismissed.
10 The essence of the pleadings was summarised by Estcourt J:
6 The amended statement of claim in the action pleads the following allegations. In 2013 the respondent and his partner used their home as a foster home for five boys, and on various occasions in January and February 2013, the 14 year old brother of two of the boys in foster care stayed overnight at the home. The child accused the appellant of sexually assaulting him and the respondent reported the allegation to the Department of Health and Human Services (the Department). A police investigation followed which resulted in a decision not to bring charges. The Secretary of the Department was empowered under the Children, Young Persons and Their Families Act 1997 (the Act), s 18, to conduct an assessment as to the circumstances of a child reasonably believed or suspected to be at risk. The task of undertaking the assessment was delegated to an officer of the Department, ... Notwithstanding the decision of the police not to bring charges, about a month after that decision, in June 2013, [the officer] published a report which implied that the respondent had sexually abused the child. The result was that the five foster children then in the care of the respondent and his partner, were removed from the foster home as a result of which the respondent suffered economic loss.
7 The pleading includes a claim that in publishing her report [the officer] recklessly disregarded the scope of her authority and by so doing engaged in misfeasance in public office. There are other complaints about her conduct which the respondent alleges constitute misfeasance in public office.
8 The pleading in respect of the claim for damages for misfeasance in public office appears at pars 15-26 of the amended statement of claim. There is a separate claim for damages for negligence which is set out at pars 27-50 of the amended statement of claim.
9 It is not expressly pleaded that the appellant is vicariously liable for any negligent act or omission of [the officer], however the State by the written submissions of its counsel, Mr Turner SC, accepts that it is so liable in respect to any such act or omission which is within the scope and course of [the officer's] employment, but only where such act/omission did not involve the exercise of any 'independent power(s)'.
10 Insofar as the claim in misfeasance in public office is concerned, the respondent pleads that the State is liable by reason of the Act, s 111, which is as follows:
(1) A person engaged in the administration of this Act does not incur any personal liability in respect of any act done, or omitted, in good faith in the performance or exercise, or purported performance or exercise, of a function or power under this Act.
(2) A liability that would, but for subsection (1), attach to a person attaches to the Crown'."
11 The interlocutory application before Holt AsJ was in the following terms:
"The State of Tasmania applies for the following orders:
1 Pursuant to Rule 259 of the Supreme Court Rules 2000, the action be dismissed and judgment be entered for the defendant with costs because the amended statement of claim does not disclose a reasonable cause of action.
2 Alternatively, pursuant to Rule 259, that paragraphs 15 - 26 of the amended statement of claim be struck out because they do not disclose any reasonable cause of action.
3 That the plaintiff pay the costs of this interlocutory application."
12 Estcourt J noted that as Holt AsJ had said in his reasons for decision, "the way in which the appellant's application was framed was such that if the claim for damages for misfeasance in public office was not struck out, the whole of the application stood to be dismissed." His Honour observed, however, that through the operation of ss 191B and 47 of the Supreme Court Civil Procedure Act 1932, his powers were sufficiently wide that if he were satisfied that the order made by Holt AsJ should be set aside, he had the power to determine the interlocutory application.
'[9] The defendant says that the tort of misfeasance in public office necessarily contains the element of malice so that liability cannot attach to the State under the Act, s 111. As to the claim in negligence, the defendant says that a person conducting a risk assessment for the care and protection of children can owe no duty of care to an alleged perpetrator of abuse, as a duty of care owed to a child is irreconcilable with the existence of a duty of care also being owed to an alleged perpetrator of child abuse. It was submitted that the High Court case of Sullivan v Moody [2001] HCA 59, 207 CLR 562 is directly in point and stands in the path of the plaintiff's negligence claim so that that claim must inevitably be dismissed.'
13 His Honour then held as follows at [11]-[14]:
'[11] As indicated earlier in these reasons, the plaintiff's claim for damages for misfeasance in public office includes a component of reckless disregard by the officer of the extent of her power. In particular the pleading includes the following:
"23.2.1 Being recklessly indifferent to whether she was empowered to make the finding of guilt and disseminate it ..."
[12] Recklessness, as opposed to carelessness, on the part of an officer may be sufficient, when combined with the likelihood of resultant harm and the fact of harm, to make good the claim. In Northern Territory v Mengel (1995) 185 CLR 307 the majority said at 347:
"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."
[13] Mengel leaves open the possibility that a public officer, albeit in a misguided way, who has engaged in reckless conduct but has been motivated by considerations of public benefit, rather than personal gain or vindictiveness, may be liable for the tort. In such circumstances it may be that, notwithstanding the misfeasance, the action was undertaken in 'good faith' within the meaning of the phrase in s 111. It follows that the claim against the State cannot be summarily dismissed.
[14] In any event, the power to strike-out a claim is discretionary. Pleadings may alter as further information comes to light during the course of a proceeding. In this regard, it is relevant to note that if the officer acted with de facto authority, for example in accordance with departmental protocols or under supervision, the State could be potentially liable on that basis. In Mengel the majority said at 347:
"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 a de facto authority, there will ordinarily only be personal liability".
'[15] Because of the way in which the interlocutory application has been framed and in light of my finding that the claim against the State in respect of misfeasance in public office cannot be struck out, I do not need to consider the question of whether or not the claim in negligence is untenable. The assessment of that claim will have to await the trial'."
14 The appellant's case in this Court is identical to the case it presented to Estcourt J. The written submissions summarise that case:
"2 The respondent's claim against the State for misfeasance of public office cannot succeed because:
(a) Section 111(2) of the Children Young Persons and Their Families Act 1997 (the CYPTF Act) attaches to the Crown any personal liability of a person engaged in the administration of the CYPTF Act in respect of any act done or omitted, in good faith. The essence of the tort of misfeasance of public office is bad faith. Section 111(2) is not engaged in respect of an act done, or omitted in the administration of the CYPTF Act in bad faith.
(b) In order to succeed in an action for misfeasance of public office, the plaintiff will have to prove (amongst other things) that a State employee, [the officer], was relevantly acting in bad faith. The tort of misfeasance of public office is a tort of an individual public officer, for which he or she is personally liable. It is not against the employer of the public officer. If [the officer] was acting in bad faith, the State is not liable for her acts or omissions.
3 The respondent's claim against the State in negligence cannot succeed either. That is because in Australia the law does not impose a duty on person who is charged with the conduct of investigations, or the exercise of powers in the public interest or in the interest of a specified class of persons, to exercise care for the interests of another class of persons, where that would impose on them conflicting claims or obligations. The respondent alleges that because the State owed a duty of care to the respondent's foster children, it assumed a duty to him as their foster parent. There is no such duty."
15 Before Estcourt J, and in this Court, the appellant accepted that to succeed the appellant must demonstrate "some legal, factual or discretionary error" infecting the order made by Estcourt J, and also accepted that to make out its case for summary disposal of the respondent's claim, it must establish a "very clear case". The appellant referred to the remarks of Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 which were cited by Holt AsJ, and to the following passage in the judgment of Barwick CJ in General Steel Industries v Commissioner of Railways [1964] HCA 69; (1964) 112 CLR 125 at 128-130:
"The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'.
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners where he says: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
16 The appellant submitted that the errors committed by both Holt AsJ and Estcourt J fall generally within the categories of acting "upon a wrong principle", and allowing "extraneous or irrelevant matters" to guide or affect them. In essence, the appellant contended that the respondent does not have a "tenable cause of action against the State", and the appellant is "unnecessarily required to defend novel and unknown causes of action, advanced under the rubrics of misfeasance in a public office and negligence."
17 In dismissing the appeal, as to misfeasance, having referred to the decisions in Northern Territory v Mengel (1995) 185 CLR 307 and Holloway v State of Tasmania [2006] TASSC 60, 15 Tas R 127, Estcourt J concluded:
"[26] Holloway does not decide that, in the context of Mengel leaving open the possibility of recklessness committed in good faith, the mental element that must be proved must be referable to conduct that 'was otherwise than an honest attempt to perform the functions of [the] office'. The respondent should not be prevented from arguing that Holloway should be confined to its facts and should have the opportunity of arguing the concepts of Mengel 'reckless disregard' and 'good faith' with the benefit of the evidence presented at trial as to [the officer's] actual state of mind.
[27] These things are arguable and the respondent should not be shut out from the opportunity to elicit the necessary evidence to put its best arguments on the existing law, or to argue for a development of the law left open by decided cases."
18 As to the case in negligence, based on the decision of the High Court in Sullivan v Moody [2001] HCA 59, 207 CLR 562, Estcourt J regarded the appellant's case as "strong", but added:
"[28] ... However, I accept the respondent's submission that the present case is capable of being distinguished from that case. The categories of duty are not closed, and a novel 'piggy back' duty relating to economic loss caused by complaints of child sexual abuse in the particular factual circumstances of this case is at least arguable."
"[29] ... In this case where, almost axiomatically from the 43 pages of closely reasoned written argument on both sides, this case is not a 'very clear case' and Holt AsJ did not err in exercising his discretion as he did. I detect no 'legal, factual or discretionary error' infecting the order made by his Honour."
20 At the heart of the appellant's case with respect to misfeasance is the proposition that the absence of good faith is an essential element of the tort of misfeasance in public office. The appellant contended that in expressing the view that it might be possible for the tort to be committed in good faith, although recklessly, Estcourt J erred in principle because "the essence of the tort is bad faith". The appellant identified malice as an essential element which could only take two forms, namely:
(b) knowledge of the lack of power and that the act in the absence of power is likely to cause injury, including reckless indifference as to the absence of power and the likelihood of injury".
"23 Recklessness does not admit of good faith. It invariably involves an element of bad faith, or 'lack of honesty which makes the act an abuse of power'.
24 Although there has been some academic debate, and decisions of intermediate appellate courts that the injury is one which is foreseeable, in an objective sense, the principle is confined to actual awareness that harm is likely to occur, or reckless indifference to that likelihood.
25 There are good reason of policy to confine the reach of the tort to intentional acts and omissions. The tort is one committed by an individual public officer, for which he or she is personally liable. In Northern Territory of Australia v Mengel ('Mengel'), Brennan J said:
'A public officer is appointed to his or her office in order to perform functions in the public interest. If liability were imposed upon public officers who, though honestly assuming the availability of powers to perform their functions, were found to fall short of curial standards of reasonable care in ascertaining the existence of those powers, there would be a chilling effect on the performance of their functions by public officers. The avoidance of damage to persons who might be affected by the exercise of the authority or powers of the office rather than the advancing of the public interest would be the focus of concern.'
'... for the plaintiffs to establish liability ... for the tort of misfeasance in public office, they must prove that [the Commissioner's] conduct was otherwise than an honest attempt to perform the functions of his office. Such conduct would not be in good faith for the purposes of s52, just as conduct relied upon to found an action for deceit or malicious prosecution is not in good faith so as to invoke the Public Authorities Act 1893 (UK), see Halsbury's Laws of England, 2nd ed, vol 26, par 616.'
27 It is submitted that Holloway was correctly decided, was binding on the learned Judge and should be followed in this Court, unless it is found to be plainly wrong." [Footnotes omitted.]
22 The tort of misfeasance in public office was discussed in the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ in Northern Territory v Mengel (above). In particular, the following extract from the judgment provides the context for the particular passage concerned with the proposition that the decision in Mengel left open the possibility that misfeasance in public office can occur if, albeit acting in good faith, a public officer acts recklessly with respect to the extent of their power at 345-348:
"It was recognized 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. There are three cases which are sometimes said to support a wider liability. The first is Brasyer v Maclean. That case was referred to by Smith J in Farrington v Thomson and Bridgland, which is generally regarded as one of the seminal cases on misfeasance in public office, in connection with the statement that 'in some cases at least, ... it is sufficient that the act was a breach of his official duty, even though it is not shown either that he realized this or that he acted maliciously'. Brasyer v Maclean involved a sheriff's false return of rescue upon a writ of capias ad respondendum and it may have been decided on the basis that the sheriff was to be taken as having the same knowledge as the bailiffs to whom he entrusted its execution. Whether or not that is so, the suggestion made in Farrington that Brasyer laid down a general rule extending liability beyond acts intended to cause harm or acts known to be beyond power, has been implicitly rejected in other cases and explicitly rejected in Pemberton v Attorney-General. The other two cases which are sometimes said to support a wider liability are Wood v Blair and Helmsley Rural District Council and McGillivray v Kimber. However, liability was admitted in the first case and there was a strong suggestion that the public officers were motivated by malice in McGillivray v Kimber.
One aspect of misfeasance in public office that lacks precise definition is whether, assuming damage, it is sufficient to establish that the public officer knows that he or she is acting without authority or whether there is some additional requirement. For example, it was suggested in Bourgoin SA v Ministry of Agriculture that there is an additional requirement that damage be foreseeable, and it was said in Tampion v Anderson that the plaintiff must be 'the member of the public, or one of the members of the public, to whom the holder of the office owed a duty not to commit the particular abuse complained of'.
There is a statement in Farrington which might be thought to deny any requirement over and above knowledge that the act is beyond power. It was said in that case that 'if a public officer does an act which, to his knowledge, amounts to an abuse of his office, and he thereby causes damage to another person, then an action in tort for misfeasance in a public office will lie against him at the suit of that person'. However, there is no indication as to what is comprehended in the expression 'an abuse of his office' and Smith J, whose decision it was, was a member of the Full Court which later stated in Tampion v Anderson that there was, additionally, a requirement that there be a duty to the plaintiff. Moreover, the act complained of in Farrington, namely, that of ordering the closure of a hotel, was one which, if complied with, would necessarily result in damage.
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.
Once foreseeability is accepted as a requirement in cases based on actual knowledge, it follows that the argument that a public officer is liable for misfeasance if the officer ought to know that he or she lacks power is, for practical purposes, the same as saying that the officer is under a duty not to exceed his or her power if there is a risk of foreseeable harm. Indeed, so much was implicit in the statement of counsel for the Mengels that they were also entitled to succeed in negligence if the Inspectors were liable for misfeasance in public office by reason that they ought to have known that they were acting without authority.
If it were the case that governments and public officers were not liable in negligence, or that they were not subject to the same general principles that apply to individuals, there would be something to be said for extending misfeasance in public office to cover acts which a public officer ought to know are beyond his or her power and which involve a foreseeable risk of harm. But in this country governments and public officers are liable in negligence according to the same general principles that apply to individuals. And, in that context, the argument that misfeasance in public office should be reformulated to cover the case of a public officer who ought to know of his or her lack of power can be disposed of shortly. So far as unintended harm is concerned, the proposed reformulation suffers the same defect in relation to the law of negligence as does the principle in Beaudesert, namely, it serves no useful purpose if there is a duty of care to avoid the risk in question and is anomalous if there is not. And it serves no purpose if the public officer is actuated by an intention to harm the plaintiff for that constitutes misfeasance in public office whether or not the officer knows that he or she lacks authority." [Footnotes omitted.] [My Emphasis.]
23 Estcourt J expressed the view that the passage from the judgment in Mengel to which I have added emphasis "leaves open the possibility that a public officer, albeit in a misguided way, who has engaged in reckless conduct but has been motivated by considerations of public benefit, rather than personal gain or vindictiveness, may be liable for the tort". His Honour added that in these circumstances, notwithstanding the misfeasance, it may be that the action was undertaken "in good faith" within the meaning of that phrase in s 111. His Honour concluded, therefore, that the claim against the State could not be summarily dismissed.
24 The appellant submitted that the conclusion reached by Estcourt J is contrary to the binding decision of the Tasmanian Full Court in Holloway v State of Tasmania (above). In Holloway the appellants claimed that the Commissioner of Police had failed to investigate their complaints properly, and failed to afford them procedural fairness, thereby committing the tort of misfeasance in public office. The claim against the State was struck out and the appeal against that decision was dismissed.
25 In Holloway, s 52 of the Police Regulation Act 1898 provided the same protection for police officers as s 111 of the Children, Young Persons and their Families Act (the Act) which is under consideration in the proceedings before this Court. In particular, a police officer did not incur civil liability for an act or omission done or made "in good faith" in the exercise of the powers and functions conferred on the officer, and subs (2) provided that liability which would, but for the protection in subs (1), lie against a police officer, shall lie against the Crown. In other words, the Crown was liable only for acts or omissions done or made "in good faith".
26 In a judgment with which Crawford and Tennent JJ agreed, Blow J (as he then was) said:
"[5] But for that section, the State could not be liable for any tort committed by a police officer: Enever v R [1906] HCA 3; (1906) 3 CLR 969. As a result of the enactment of that section, it became possible for the State to be liable for a tort committed by a police officer, but only in respect of 'an act or omission done or made in good faith'. But any act or omission by which a police officer commits the tort of misfeasance of public office is inconsistent with 'good faith': Northern Territory of Australia v Mengel (1996) 185 CLR 307 at 357. Thus, if the Commissioner of Police did commit that tort, the State cannot be liable in respect of it.
[6] No other cause of action known to the law was pleaded in the statement of claim or referred to in the endorsement of claim contained in the writ. The appellants alleged that the Commissioner had not investigated their complaints properly. However the failure of a public authority to investigate a complaint properly, by itself, does not give rise to a private cause of action for damages: Spaulding v Law Society of Tasmania [2004] TASSC 1; Mentyn v Law Society of Tasmania (No 2) [2004] TASSC 127; Trustrum v Law Society of Tasmania [2005] TASSC 20.
[7] There is nothing in the material that was before the learned primary judge, nor in the material before us, that would suggest that the appellants' claim, if repleaded, might have any prospect of success. In my view the learned primary judge was right in all that he said. There is no need to repeat his analysis and observations. The order that he made was the only appropriate one. Of course this appeal concerns only the question whether the appellants could succeed in claiming damages from the State. It does not concern the question whether they may or may not have a right of action for damages against one or more police officers." [My emphasis.]
27 Blow J expressed the view that the learned primary judge, Evans J, was "right in all that he said". The reasons of Evans J included the following passage:
"[11] The indemnity provided to the Commissioner by s 52(1) is conditional upon his liability being for an act or omission done or made 'in good faith' ... Whilst the words 'in good faith' are often used in statutes and rarely defined, they are almost invariably construed as meaning honestly. See, for example, Central Estates (Belgravia) Ltd v Woolgar [1971] 3 All ER 647, Denning MR at 649, Phillimore LJ at 650 and Megaw LJ at 651. In some instances good faith has been construed as requiring more than honesty, Mid Density Developments Pty Ltd v Rockdale Municipal Council [1993] FCA 408; (1993) 44 FCR 290 at 298-300 and Barrett v State of South Australia (1994) 63 SASR 208. I am not aware of any instance where it has been held that a requirement of good faith was satisfied by less than honest behaviour. I have no hesitation in concluding that within s 52 the words 'good faith', at the very least, required that the act or omission in question be done or made honestly. However, as explained in par 10, for the plaintiffs to establish liability against the Commissioner for the tort of misfeasance in public office, they must prove that his conduct was otherwise than an honest attempt to perform the functions of his office. Such conduct would not be in good faith for the purpose of s 52." [My emphasis.]
28 Estcourt J was of the view that in the context of Mengel "leaving open the possibility of recklessness committed in good faith", Holloway did not decide that the mental element to be proved "must be referrable to conduct that 'was otherwise than an honest attempt to perform the functions of [the] office'." It was on this basis that Estcourt J determined that the respondent should not be prevented from arguing that Holloway should be confined to its facts and "should have the opportunity of arguing the concepts of Mengel 'reckless disregard' and 'good faith' with the benefit of the evidence presented at trial as to [the officer's] actual state of mind".
29 The appellant submitted that the view of Estcourt J faces two impediments. First, with the agreement of Crawford and Tennent JJ, Blow J expressed the view that Evans J "was right in all that he said". This statement must be viewed as encompassing the opinion of Evans J that to prove the tort of misfeasance in public office by the Commissioner of Police, the appellants were required to prove that the Commissioner's conduct was "otherwise than an honest attempt to perform the functions of his office".
30 Secondly, relying on Mengel, Blow J plainly stated that any act or omission by which a police officer commits the tort of misfeasance in public office "is inconsistent with 'good faith'". His Honour added that if the Commissioner of Police committed the tort of misfeasance in public office, the State could not be liable in respect of the acts by which the Commissioner committed that tort.
31 In summary, the respondent advanced the following propositions:
32 The preamble to the Act describes the purposes of the Act as providing for "the care and protection of children". The primary object of the Act is described in s 7 as providing "for the care and protection of children in a manner that maximises a child's opportunity to grow up in a safe and stable environment and to reach his or her full potential". Section 8 directs that in the exercise of powers under the Act in relation to a child, "the best interests of the child must be the paramount consideration".
33 The Act was administered by the Minister for Community and Health Services and the Department of Community and Health Services (the Department). Section 69 of the Act empowered the Secretary of the Department to provide for the care of a child who was under the guardianship, or in the custody, of the Secretary. Those powers included placing a child in the care of persons the Secretary considered suitable, giving directions as to the residence of a child and making arrangements for education and the general care of a child as the Secretary considered appropriate. Section 69(2) directed the Secretary to consider the best interests of the child to be the "paramount consideration" when making provision for the care of a child.
34 If the Secretary believed, or suspected, on reasonable grounds that a child was at risk, s 18 provided that the Secretary could "carry out an assessment of the circumstances of the child". For this purpose, the Secretary was provided with a number of powers, including obtaining the assistance of the Commissioner of Police and applying to the Magistrates Court (Children's Division) for appropriate orders. The Act did not specifically address how the Secretary should respond following completion of an assessment, but the Secretary possessed ample powers in s 69 to provide for the appropriate care of a child after an assessment had been completed.
35 It is common ground that the assessment of the circumstances of the child who made the complaint about the conduct of the respondent was carried out by an officer of the Department. Although s 110 of the Act enabled the Secretary to delegate any of the Secretary's functions and powers, the material before the Court does not disclose whether an appropriate delegation was made to the officer who carried out the assessment.
36 This brief overview of the Act provided the broad context in which the officer exercised powers of assessment, and in which s 111 operated. The officer was dealing with a child who had alleged that the respondent sexually assaulted the child. It was a serious matter in which the interests of the child were paramount. In these circumstances, one of the purposes of s 111 was to ensure that officers who carried out such investigations or assessments were able to do so without fear of repercussions from persons such as the respondent whose interests might be adversely affected by the result of the assessment. This was the context in which the proviso that the powers be exercised "in good faith" operated. If that proviso is construed narrowly, it would leave officers carrying out assessments without protection and would discourage full and fearless assessments. It would also have the potential of leaving injured persons without a solvent defendant from whom to recover reasonable damages for wrongful exercise of power.
37 In Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16, 135 FCR 105, French J (as he then was) pointed out that the construction of the words "good faith", "will be adapted to the particular statute or rule of law in which the words are used" [87]. It was French J who observed that the term has been described as "protean", and that its "applications are diverse and reflected in a variety of constructions according to its particular applications" [84]. His Honour added that the variety of particular applications of "good faith", "does not deny the conclusion that the words have a core meaning which is of general application manifested in different ways according to the environment in which they must be applied".
38 From the appellant's point of view, reliance is placed upon the following passage in French J's judgment at [91]:
"[91] Honesty is an element embedded in the ordinary meaning of good faith. It is the antithesis of bad faith. The idea of fidelity or loyalty goes beyond honesty. It is a relational concept. It involves adherence to a commitment or an obligation or a principle. Because it is relational it is ambulatory and because it is ambulatory so too is the concept of 'good faith' as a whole. In a less direct sense so too is honesty. In the context of an implied term of good faith in the performance of a contract, Sir Anthony Mason used the words 'mainly in the sense of loyalty to the promise itself and as excluding bad faith behaviour' ... These elements are not contingent upon context. They emerge from the ordinary meaning of the words although, like 'fairness' in administrative justice, they take their content from the particular circumstances in which it is sought to apply them." [Citation omitted.]
39 Notwithstanding extensive debate over the years about the meaning of the expression "in good faith", and varying interpretations according to context, the appellant submitted that the point is foreclosed by the decision in Holloway. However, in Holloway the basis of the misfeasance by the Commissioner of Police was said to be a failure to investigate the appellants' complaints properly, and a failure to afford the appellants procedural fairness. In the matter under consideration, the pleading claims that in publishing her report, the officer recklessly disregarded the scope of her authority and, by doing so, engaged in misfeasance in public office. The circumstances in Holloway did not require the court to consider the implications of the judgment in Mengel, in particular from the passages to which Estcourt J referred and from which his Honour concluded that the decision left open the possibility of "recklessness committed in good faith".
40 In the particular circumstances under consideration, in my opinion Estcourt J was correct in concluding that the respondent should not be prevented from arguing that Holloway should be confined to its facts. Further, the respondent is entitled to argue a case based on the concepts of reckless disregard and "good faith" as discussed in Mengel. The evidence of the officer's state of mind at the time of exercising the powers and reporting the assessment might be crucial. As was pointed out in the joint judgment of French CJ and Gummow J in Spencer v The Commonwealth [2010] HCA 28, 241 CLR 118 at 132 [25], existing authority which appears to preclude the success of proceedings "may not always be the end of the matter" as existing authority "may be overruled, qualified or further explained". Their Honours added that summary processes "must not be used to stultify the development of the law".
41 In my opinion, the appellant has failed to establish the "very clear" case required to justify a summary dismissal of the respondent's case with respect to misfeasance in public office. The appellant has failed to establish that either Holt AsJ or Estcourt J erred in principle or that their exercise of the discretion miscarried.
42 In essence, the respondent claims that because the State owed a duty of care to the five foster children residing with the respondent and his partner (the children), a duty of care was also owed to the respondent when carrying out the investigation or assessment of the claim that the respondent had sexually assaulted the brother of two of the children.
43 The respondent's statement of claim asserts that the relevant Minister, and those acting on behalf of the Minister (including the officer), owed a duty of care to the children who resided with the respondent. That included a duty in preparing and disseminating the assessment "to take reasonable care and use reasonable diligence, so as not to cause the children unnecessary damage such as causing their supportive family environment with the plaintiff and his partner to be broken up". In that context, the respondent claims a duty was owed to the respondent:
"39.14 To take reasonable steps: to obtain and act in accordance with advice about the legal requirements in making a lawful assessment: where such requirements would operate in the both Plaintiff's interests and the public interest to achieve a fair process; and/or
39.15.1 Were consistent and coherent with a higher duty of care owed to the children;
39.15.2 Were steps in the course of gathering evidence, identifying and considering the existence (or otherwise) of objective circumstances that logically bore upon finally exercising any claimed powers under the CYPTF Act (ie a process antecedent to such a finally exercise);
39.15.3 Were steps where a failure to take such steps risked with a high degree of certainty and foreseeability causing the Plaintiff severe and unnecessary damage to interests of legal importance such as causing the supportive family environment to be broken up and consequent loss and damage that such a break up would cause to the Plaintiff."
44 At the heart of the respondent's case in negligence is the duty of care owed by the Department of Health and Human Services to the children. From that duty to the children, the respondent asserts a "piggy back" duty owed to the respondent who was caring for the children. That duty existed, contended the respondent, notwithstanding that the officer was carrying out an assessment of the circumstances of a child, other than one of the children, who was suspected of being at risk at the hands of the respondent.
45 As Estcourt J succinctly explained, it is the appellant's case that the servants of the State, in exercising powers under the Act, "owe no duty of care to someone alleged to have harmed a child". The appellant relies upon the purpose of the Act which provides the context for considering the duty of care upon which the respondent relies, and upon the decision of the High Court in Sullivan v Moody (above).
46 The appellant submitted that the respondent's claim against the State in negligence cannot succeed because the law does not impose a duty on the officer conducting the assessment, who is bound to act in the best interests of the child, to exercise care "for the interests of another class of person", if that duty would impose on the officer conflicting claims or obligations. The appellant contended that the claim cannot survive in view of the decision of the High Court in Sullivan v Moody. Estcourt J was of the view that the appellant's argument is "strong" in this regard, but his Honour accepted the respondent's submission that the circumstances under consideration were capable of being distinguished from that case. His Honour added:
"The categories of duty are not closed, and a novel 'piggyback' duty relating to economic loss caused by complaints of child sexual abuse in the particular factual circumstances of this case is at least arguable".
47 In Sullivan v Moody, the High Court was concerned with investigations into alleged sexual abuse of children by officers of the Department of Community Welfare which resulted in reports or references to police. In essence, it was contended that the persons involved in investigating the allegations owed a duty of care to the fathers of the children who were suspected of sexually abusing the children. The claims had been struck out for failure to disclose a cause of action, and an appeal to the Full Court had been dismissed.
48 In concluding that the duty of care for which the appellants contended did not exist, and that the appeals should be dismissed, the High Court said [60]-[62]:
"[60] The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.
[61] There is also a question as to the extent, and potential indeterminacy, of liability. In the case of a medical practitioner, the range of people who might foreseeably (in the sense earlier mentioned) suffer some kind of harm, as a consequence of careless diagnosis or treatment of a patient, is extensive.
[62] The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect."
49 The principal points from the judgment which the appellant submits stand in the way of the respondent's claim based on negligence are as follows:
50 There is a clear conflict between the interests of the child, whose treatment at the hands of the respondent was being investigated, and the duty which the respondent contends was owed to him. However, the respondent seeks to argue at trial that the principle enunciated in Sullivan v Moody (above) is applicable to the particular facts in that case, and does not exclude the development of the law to be applied to entirely different circumstances[2]. In this context it is relevant to note the qualification in the judgment that inconsistent obligations would "ordinarily" be a reason for denying the existence of the duty for which the respondent contends. The respondent seeks to argue that the key difference is found in the duty owed by the officer to the children living with the respondent.
51 I agree with Estcourt J that the appellant's argument based on Sullivan v Moody is strong, but I also agree with his Honour that, bearing in mind that the categories of duty are not closed, "a novel 'piggy back' duty relating to economic loss caused by complaints of child sexual abuse in the particular factual circumstances of this case is at least arguable".
52 The appellant also submitted that the respondent's pleading "assumes" that the officer was the Secretary's delegate. In these circumstances, the appellant submitted that the independent officer rule applies, whether or not the officer is acting in "good faith" to "relieve the employing authority of vicarious liability". This submission asserted that the officer had to be "satisfied" that the child was "at risk". This was the state of mind she was required to form in order to exercise the power. Hence "she could not be compelled or directed to form it, or not to form it" and "her exercise of the power was truly independent".
53 There is no evidence before this Court as to whether there was a delegation pursuant to s 110. Delegation is not pleaded in the defence. In any event, contended the respondent, it would be a strange construction of the Act to determine that the State is not responsible for the conduct of the assessment. Counsel suggested that the issue of de facto authorisation rendering the State liable is, at the least, arguable.
54 In my view, as the evidence currently stands, the issue of the application of the independent officer rule is not so clear cut as to justify summary dismissal of this aspect of the respondent's claim.
55 In addition, as the claim for damages for misfeasance is not struck out, the entire application should be dismissed.[3]
56 For these reasons, in my opinion the appellant has failed to make out the "very clear case" for summary dismissal of this aspect of the respondent's claim. In my opinion, the appellant has failed to establish that the exercises of the discretion by Holt AsJ and Estcourt J should be set aside.
[1] MFC v State of Tasmania [2020] TASSC 9.
[2] Spencer v The Commonwealth as cited in [35] of these reasons.
[3] Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1 per Kirby P (as he then was) at 5.
State of Tasmania
MFC [2021] TASFC 6
(1995) 185 CLR 307
(1949) 78 CLR 62
(1964) 112 CLR 125
(1906) 3 CLR 969
(1996) 185 CLR 307
(1993) 44 FCR 290
(1994) 63 SASR 208
(1992) 30 NSWLR 1