Twining v Curtis [2008] ACTSC 3

3. The plaintiff's case is that the defendant caused the termination of his employment, resulting in economic loss in the form of loss of earnings and entitlements. He asserts in the statement of claim that he was employed by the Australian Public Service Commission in Canberra from 7 June 2004 until 5 November 2004 as an administrative officer (APS 3-4) subject to successful completion of a probationary period. He was initially engaged as executive assistant to the group manager of the Programs Group, then known as the Leadership, Learning and Development Group, of the Commission.

4. He asserts that the defendant was employed by the Commission as Director of Human Resources (Corporate Group). He asserts that her role included providing advice to Commission staff on the application of legislation, other laws and guidelines to them. He further asserts that the defendant was employed under the Public Service Act 1999 (Cth), and was required to comply with the Australian Public Service Values and Code of Conduct. He claims that she abused the power of her office to his detriment on three occasions, causing the termination of his employment by the Commission on 5 November 2004.

5. The plaintiff asserts that the behaviour of the defendant on each of the three occasions constituted misfeasance in public office. The first occasion, he says, was on about 16 June 2004 when she falsely informed his supervisor that he had discussed the circumstances of his engagement with another employee, thereby betraying his supervisor's trust. He says that the defendant told the supervisor that he (the plaintiff) had made inappropriate comments to the fellow employee and had disclosed to the fellow employee the process the Commission had used to engage him. The plaintiff asserts that the defendant also falsely advised the fellow employee that she had been entitled to appeal against the plaintiff's engagement by the Commission. The plaintiff says that the defendant's exercise of her power in these circumstances was invalid, reckless and calculated to harm him.

6. The second instance, as pleaded by the plaintiff, occurred on 17 September 2004 when the defendant authorised an extension of the plaintiff's probationary period and a transfer to another position within the Commission without allowing the plaintiff to see or respond to a probation report upon which she based her decision. The probation report, he says, had been prepared by his supervisor and had contained comments adverse to him in relation to the circumstances of the first instance. The plaintiff was shown the probation report three days later. He complained to the defendant about its contents but she refused to do anything about it and in particular to alter her decision. Again the plaintiff says that the defendant's exercise of her power was invalid, reckless and calculated to harm him.

7. The third instance of which the plaintiff complains occurred, he says, on 20 October 2004. It is common ground that on that date he sent the defendant an email in the following terms:

Could you please kindly advise Christine that the expression "good boy" (repeated on Monday 18 October) unsettles me. I remind you both that my lowly station is not a reliable indicator of my legal capacity.

8. Later on the same day, the defendant replied to the plaintiff, sending copies of her reply and his earlier email to his supervisor and to another member of the staff of the Commission, the plaintiff's line manager. The defendant's reply read as follows:

I have raised this with Christine and she is now aware of your concerns about this level of informality and how it makes you feel.

If you have other concerns you could speak to her directly in the first instance or if you are uncomfortable with this approach you could discuss with your line manager Ross, who would be happy to raise these things on your behalf.

9. The plaintiff's complaint about this is that the defendant forwarded what he describes as a private email to the line manager without his consent. He says that this prejudiced the line manager against him and led to the line manager recommending the termination of his employment. The plaintiff says that the defendant involved the line manager in circumstances where she was aware that the plaintiff had requested a values and code of conduct investigation, pursuant to the defendant's advice, about earlier occasions when the plaintiff's supervisor had addressed him as a good boy. He further says that the defendant knew that the line manager was not a party to the pending investigation. Again, he asserts the defendant exercised her power in a manner which was invalid, reckless, and calculated to harm him.

10. The statement of claim goes on to devote a number of paragraphs to an issue described as the plaintiff's vulnerability. These paragraphs set out factual assertions about events subsequent to the termination of the plaintiff's employment which could not, it seems to me, have any relevance to causes of action against the defendant based on assertions of misfeasance between June and October 2004. I think it likely that they have been included in the statement of claim by reason of an understandable misconception on the part of the plaintiff. As I mentioned earlier, he initially framed his claim against the defendant in negligence. He became aware during the course of the hearing of the earlier application by Crispin J that he faced significant difficulties in mounting a claim for damages for negligence for pure economic loss in circumstances where he had suffered no physical injury or damage to property. His attention was drawn to the decision of the High Court in Woolcock Street Investments Pty Limited v CDG Pty Limited [2004] HCA 16; (2004) 216 CLR 515, in which the majority (Gleeson CJ, Gummow, Hayne and Haydon JJ) referred at page 530 to the concept of vulnerability as having emerged as a requirement for success in such cases. I suspect that the plaintiff understood the reference to be to the usual and ordinary meaning of the word "vulnerability" rather than to its special meaning in pure economic loss cases. It seems to me inevitable that if any of the statement of claim is to survive, paragraphs 32 to 37, dealing with vulnerability, must be struck out.

11. In the amended statement of claim, the plaintiff has dropped his claim for negligence and relies solely on the tort of misfeasance in public office. The question for determination by the Court on this application is whether the facts pleaded in the amended statement of claim, if proved, would be capable of establishing that cause of action against the defendant. If the plaintiff has an arguable case, he should be allowed to take it to trial. The statement of claim should be struck out only if it meets the stringent test for which the authority generally cited is the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129.

12. The tort of misfeasance in public office has a long history: see the summary by Smith J in Farrington v Thomson [1959] VicRp 49; [1959] VR 286 at 293. There has been some difference of opinion as to the precise elements of the tort. It received the attention of the High Court in Northern Territory v Mengel (1995) 185 CLR 307. The majority (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) said at 345:

It was recognised as recently as 1973 that the precise limits of the tort of misfeasance in public office were then undefined. In important respects, that is still true. However, the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power.

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. . . . It was said in Tampion v Anderson [1973] VicRp 70; [1973] VR 715 at 720 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".

Their Honours noted that Smith J in Farrington had set out a statement of the law which might be thought to be inconsistent with any such requirement. However, their Honours noted that Smith J had been a member of the Full Court in Tampion and had joined in the expression of opinion that there was an additional requirement that there be a specific duty to the plaintiff. The majority did not expressly disagree with this proposition, but nor did they expressly endorse it.

14. Deane J set out the elements of the tort at page 370 in a passage which has been subsequently cited in a number of courts as authoritative. His Honour said:

The tort of misfeasance in public office is "well-established". Its elements are:

iv. in the purported discharge of his or her public duties;

That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case.

15. The only judge who expressed a definite view in Mengel about the "member of the public" issue was Brennan J who said at 357:

. . . the mental element is satisfied either by malice . . . or by knowledge . . . the mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office . . . . In my opinion, there is no additional element which requires the identification of the plaintiff as a member of a class to whom the public officer owes a particular duty, though the position of the plaintiff may be relevant to the validity of the public officer's conduct. If, for example, the officer's administrative act may be invalid because he or she did not treat the plaintiff with procedural fairness. It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse or of misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete.

16. The expression of opinion by Brennan J in Mengel is troubling. Tampion was decided by a full bench of the Supreme Court of Victoria (Smith, Pape and Crockett JJ). The Court said at page 720:

The precise limits of the tort have yet to be defined but certain things are clear. Employment with the Crown is not necessarily a public office for this purpose. The office must be one the holder of which owes duties to the members of the public as to how the office shall be exercised. The action has been held to lie in respect of an act done in purported exercise of statutory or common law powers to such an office where those powers are knowingly exceeded: cf Farrington . . . and authorities there cited. But to be able to sustain an action upon this basis a plaintiff plainly must not only show damage from the abuse: he must also show that he was 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.

17. This passage was quoted with approval by a full bench of the Supreme Court of Tasmania (Neasey, Chambers and Nettlefold JJ) in Pemberton v Attorney-General (1978) TasSR 1 at 12. Both Tampion and Pemberton were cited without disapproval by the majority in Mengel.

18. Pemberton was a schoolteacher claiming damages in respect of an action by the Director-General of Education. The Court found that no action lay because the Director-General was not acting in a public office in respect of the teacher, in relation to the act complained of, nor was the teacher a member of the public to whom he owed a duty.

19. Tampion was followed by Moller J in MacKenzie v MacLachlan (1979) 1 NZLR 670, in striking out a writ filed by an employee of a city council against the town clerk and general manager, holding that the dispute was a personal one between two employees and arose out of the defendant's management responsibilities rather than his public office.

20. In this Court, Crispin J in Berry v Ryan (2001) 159 FLR 361; [2001] ACTSC 11 made some observations, at paragraph 78 and following, about the tort of misfeasance in public office and noted the difference of judicial opinion about the "member of the public" element of the tort. His Honour said that he would be inclined to follow the approach of Neasey J in Pemberton, to deny a cause of action in misfeasance where the relationship between the plaintiff and the defendant was one of fellow employees both governed by public sector legislation.

21. The issue arose in the present application in the course of argument, in circumstances where the plaintiff drew attention to the observations of Brennan J in Mengel, of which senior counsel for the defendant frankly conceded that he had been unaware. Without the benefit of any time for detailed consideration of the matter, the reaction of senior counsel for the defendant was to accord significant weight to those observations and to concede that they might have some application to the second instance of which the plaintiff complains, making his claim arguable.

22. For my part, it does not seem to me with the greatest of respect that the observations can be accorded authoritative status. The Court in Mengel was constituted by seven justices, five of whom joined in the majority judgment. Only Brennan J, in a single judgment concurring as to the outcome, raised the "member of the public" issue and expressed a view about it. It seems to me that more is required if the High Court is to be seen to have overruled the judgments of courts of three judges in the Supreme Courts of two states of Australia. Sitting at first instance in this Court, I am obliged, it seems to me, to follow Tampion and Pemberton until they are unequivocally overruled.

23. Applying the principles to the assertions pleaded in the statement of claim, it falls to me to examine the asserted conduct of the defendant in each of the three instances pleaded. The first instance is an assertion that the defendant said something false about the plaintiff to his supervisor. The public office the defendant is said to have held at the time was the position of Director of Human Resources for the Australian Public Service Commission, the plaintiff's employer. There is nothing pleaded about the responsibilities of this position, but from its title I can reasonably infer that the defendant was responsible for staff matters within the Commission, including hiring and firing. It does not seem to me that the conduct complained of in relation to the first instance could be regarded as constituting the exercise of power in a public office. It does not seem to have amounted to the exercise of any authority at all. At most it seems to have been a conversation which may have been mischievous. Furthermore, the first instance occurred early in the plaintiff's period of employment with the Commission. It is not alleged that the first instance resulted in termination of the plaintiff's employment. Indeed it is clear that it did not. No damage is alleged to have flowed from it. Accordingly it seems to me that the paragraphs of the statement of claim which deal with the first instance (paragraphs 7 to 15) must be struck out.

24. The assertion in relation to the second instance is in a different category. Here it is clear that the conduct complained of, if it happened, was conduct in the exercise of the defendant's responsibilities as Director of Human Resources for the Commission. This instance is alleged to have occurred at a time closer to the end of the plaintiff's employment and the plaintiff might be able to satisfy the Court of a causal link between the conduct and the termination of his employment. He may be able to satisfy the Court that the defendant owed him a duty of procedural fairness to show him the probation report in draft form for comment before finalising it.

25. The difficulty the plaintiff faces is that he was not a member of the public. He was an employee of the Commission, and the defendant was his superior. As Director of Human Resources she was undoubtedly in a position to influence the continuation or termination of his employment. But it is clear from the statement of claim that she did not have the power to terminate his employment. The plaintiff makes it clear that his employment was terminated by the Commission as a result of a recommendation made by his line manager or director, Mr Ross Davidson. What the defendant is said to have done was to have, as part of the extension of his probationary period, transferred him to another position within the Commission. It is not asserted that this change of position led to any reduction in earnings or other economic loss. Thus, although the plaintiff complains about the content of the probation report, the second instance seems to amount to no more than an authorisation of the extension of his probationary period (which sounds like a benefit rather than a detriment) and a transfer to another position, which sounds neutral.

26. I cannot see that the second instance as pleaded is capable of forming the basis for a finding, on the part of the defendant, of abuse of the power of her office, even if it is found that, in her position as Director of Human Resources, she owed a duty to the plaintiff capable of giving rise to an action for misfeasance in public office. Further, I cannot see that the second instance as pleaded is capable of giving rise to any finding of damage, an essential element of the tort.

27. The third instance seems to me to be based on the misconception in the mind of the plaintiff that the email he sent to the defendant on 20 October 2004 was in some sense a private email. It was plainly an email sent by the plaintiff on the computer system of the Commission to a fellow employee of the Commission in relation to an issue arising out of his employment. To the extent that it might be argued that in some circumstances the recipient of an email owes a duty to the sender not to forward a copy of it to anyone else, clearly no such duty could possibly arise on these facts. The persons to whom the defendant forwarded the email were also employees of the Commission. One was the plaintiff's supervisor and the other was his line manager or director. It is very doubtful that the defendant, in forwarding the emails, was exercising a power as a public officer, but if she was, what she did was patently within power. The portion of the statement of claim which deals with the third instance (paragraphs 24 to 31) cannot stand.

28. This disposes of the whole of the statement of claim as presently pleaded. It does not seem to me that the first instance or the third instance are capable of being salvaged. It may be that the plaintiff, if permitted to prepare in draft form a further amended statement of claim, can produce a pleading which is capable, if its assertions are established, of making out a claim for misfeasance in public office in relation to the second instance. If the plaintiff wishes to take the matter further, I would strongly endorse comments made by Crispin J on 7 September 2007, to the effect that he would be well advised to engage experienced legal representation to draft or settle the pleadings in relation to this somewhat arcane tort whose precise limits remain incompletely defined. The amended statement of claim will be struck out. The plaintiff will require leave to file a further amended statement of claim.

29. I shall hear the parties as to costs and directions as to further steps in the matter.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Solicitor for the defendant: Australian Government Solicitor