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Misfeasance in Public Office - Department of Finance and .rtf

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									Misfeasance in Public Office
Ashley Tsacalos, Partner

Norton Rose Australia

Comcover Legal Service Provider Forum – Canberra 25 May 2011


Why is it important?
       a growing trend towards pleading the tort of misfeasance in public office against government
        departments and agencies.
       such claims are likely to increase in frequency and success in light of the complex administrative law
        framework in which public officers are required to make administrative decisions
       is the only public law tort at common law.

What is it?
   a deliberate tort in which an invalid or an unauthorised act or omission is done knowingly or
       maliciously by a public officer in the purported discharge of his or her public duties which causes
       loss or harm to the plaintiff.
   a person is a public officer for the purposes of the tort where he or she is appointed to discharge
       public office and receives compensation in some form, whether from the Crown or otherwise.
   it is a necessary element of liability that the purported exercise of power by the public officer be
       invalid in the sense that either:
       - there is no power to be exercised, or
       - the exercise of the power has miscarried in a way which would warrant judicial review and the
            setting aside of the administrative action.

Northern Territory of Australia v Mengel
In Northern Territory of Australia v Mengel (1995) 185 CLR 307, Mason CJ, Dawson, Toohey, Gaudron and
McHugh JJ held

(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.”


       involved unauthorised restrictions imposed by NT Government’s stock inspectors on the movement
        of cattle on two pastoral properties because of a concern about brucellosis.
       the inspectors had not known that the restrictions which they had imposed were beyond power.
       the High Court held the owners of the cattle were not entitled to recover against them or the NT
        through an action on the case for damages for misfeasance in public office.
        in the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ, they:

         -   accepted that the cause of action is established where the public officer actually knew that it
             was beyond power and intended to cause harm (at 345).
         -   indicated that there was: “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” (at 347).

        although the directions given by the inspectors in this case were beyond power, the action in the
         case did not succeed because there was no finding that they were acting other than in good faith
         nor were they found to have known that they lacked the relevant power or to have been recklessly
         indifferent to its availability (at 360).

        Justice Deane agreed with the other justices that misfeasance in public office could not be
         established.

        he outlined the elements of the tort as follows (at 370)

1.       an invalid or unauthorised act;

2.      done maliciously (i.e. intentionally), with knowledge, with reckless indifference or deliberate
blindness;

3.       by a public officer;

4.       in the purported discharge of his or her public duty;

5.       which causes loss or harm to the plaintiff.

Justice Deane further stated that (at 370):

 “In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the
plaintiff or injury to some other person through an act which injuriously affects the plaintiff. Such malice will
exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be
satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would
cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or
deliberate blindness to that invalidity or lack of power and that likely injury.        Absent such an intention,
such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be
satisfied.” (emphasis added)

According to Justice Brennan:

“A number of elements must combine to make a purported exercise of an administrative power
wrongful.The first is that the purported exercise of power must be invalid, either because there is no power
to be exercised or because a purported exercise of the power has miscarried by reason of some matter
which warrants judicial review and a setting aside of the administrative action. There can be no tortious
liability for an act or omission which is done or made in valid exercise of a power … However, a purported
exercise of power is not necessarily wrongful because it is ultra vires. The history of the tort shows that a
public officer whose action has caused loss and who has acted without power is not liable for the loss
merely by reason of an error in appreciating the power available. Something further is required to render
wrongful an act done in purported exercise of power when the act is ultra vires.” (emphasis added)
Brennan then added as follows:
“… the mental element is satisfied either by malice (in the sense stated) or by knowledge. That is to say,
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. Another state of mind which is
inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to
the availability of power to support the impugned conduct and as to the injury which the impugned
conduct is calculated to produce. The state of mind relates to the character of the conduct in which the
public officer is engaged – whether it is within power and whether it is calculated (that is, naturally adapted
in the circumstances) to produce injury. 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… Malice,
knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of
power the character of abuse of or misfeasance in public office. If the impugned conduct then causes
injury, the cause of action is complete.” (emphasis added)

Sanders v Snell (1998) 196 CLR 329
        Mengel case was applied and followed in this case.
        related to the termination of Snell’s appointment as the Executive Officer of the Norfolk Island
Government Tourist Bureau by Sanders, the new Minister for Tourism in the administration of Norfolk
Island, less than 1 month after the extension of Snell’s appointment.
        Snell brought proceedings in the Supreme Court of Norfolk Island against Sanders claiming
damages for wrongful interference with contractual relations and for misfeasance in public office.
        the trial judge made no findings about the claim for misfeasance in public office concluding that
Snell could not recover more damages on this account than were allowed for inducing breach
        there were a series of appeals and the High Court ordered a retrial.
        the retrial found in favour of Snell, Sanders appealed to the Full Court of the Federal Court of
Australia and this appeal included a challenge to the finding that Sanders was liable for misfeasance in
public office.
        the Full Court of the Federal Court of Australia (Black CJ, French and von Doussa JJ) allowed the
appeal and found that Sanders was not liable for misfeasance in public office.
        the Court indicated that the leading recent Australian authority on the scope of the tort of
misfeasance in public office is Mengel.

Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority
    in Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority [2010] FCA 994, the applicants appealed
     the primary judge’s decision, amongst other things, to decline to allow the proposed Further
     Amended Statement of Claim in relation to alleged misfeasance in public office on the basis that the
     mental element of the tort was inadequately pleaded.

•        in this case, the applicants relied on the formulation of the tort of misfeasance in public office set
out in the judgment of the majority of the High Court in Mengel as being:

(a)     an act beyond power;

(b)     by a public officer;

(c)     with the necessary mental element, namely
i.      intending to cause the plaintiff harm; or

ii.     which the officer knows is beyond power which involves a foreseeable risk of harm to the plaintiff;

iii.    where the officer’s actions was reckless indifference as to the existence of power or as to its
potential to harm the plaintiff;

iv.     causing loss or injury to the plaintiff.

•     Ultimately, the applicants were given leave to appeal in relation to the refusal to allow further
amendment of its Statement of Claim to plead misfeasance in public office.

Noye v Robbins [2010] WASCA 83
•       the appellant and respondent were serving police officers and the respondent instigated a
prosecution against the appellant for corruption in relation to an investigation in which the appellant was
involved.
•       the prosecution was discontinued and the appellant then sued the respondent for damages for
malicious prosecution, abuse of process, injurious falsehood and misfeasance in public office.
•       the trial judge dismissed the appellant’s claim against the respondent who then appealed to the
Court of Appeal of the Supreme Court of Western Australia.

Owen JA stated that:
“In order to succeed in such a cause of action, a plaintiff must show that the defendant held public office,
acted maliciously or knew the act was beyond his power and acted with intent to harm the plaintiff.
        [The trial judge] noted that the tort of misfeasance in public office involves the necessity to prove
bad faith on the part of the office holder defendant. This can accomplished by demonstrating that he or she
acted in pursuit of an improper or collateral purpose and with the intention to harm the plaintiff.
        The same element may be satisfied by proof that the office holder was acting in the knowledge that
the conduct was beyond power and that it was likely to harm the plaintiff; but there must be actual
knowledge of want of power.” (emphasis added)

•       according to the trial judge, the claim for misfeasance in public office must fail for essentially the
same reason as the malicious prosecution case failed, namely, that the respondent (Robbins) honestly
believed that there were good grounds to prosecute and was not actuated by any collateral purpose.

•       for this reason, the Court of Appeal dismissed the appellant’s claim in relation to misfeasance in
public office.

Pharm-a-Care
the tort of misfeasance in public office was also considered in Pharm-a-Care Laboratories Pty Ltd v
Commonwealth (No 3) [2010] FCA 361.

•       the respondents filed a notice of motion seeking, amongst other things, orders that the statement
of claim be struck out pursuant to O 11 r 16 of the Federal Court Rules on the basis that it suffers from a
number of deficiencies. Following this, an Amended Statement of Claim was filed.

•       one of the contentions to be resolved was whether the existing pleadings as to misfeasance in
public office against various respondents was adequate to plead misfeasance in public office.

•        this required Justice Flick to consider the general principles associated with misfeasance in public
office as to the manner in which it is required to be pleaded and the manner in which it has been pleaded
in the present proceedings.

Justice Flick stated that:
•       the tort “is not confined to acts done in purported exercise of statutory power but extends to an
exercise of common law powers incidental to an office whose powers are knowingly exceeded” (see
Tampion v Anderson [1973] VR 715).

•       an issue to resolve at the final hearing was whether one or other of the misfeasances said to have
been committed is alleged against a “public officer” and whether or not there is relevantly a “public duty”
or a “power or authority” which has been abused.

•       an allegation that a public officer has so abused his or her office that his conduct constitutes a tort
of misfeasance is a serious allegation and an allegation which should be pleaded with sufficient detail so
that the public officer knows the case being mounted against him or her.

•      the very seriousness of the allegations of misfeasance dictates that those allegations must be
allowed to proceed to a final and public hearing.

Leerdam v Noori [2009] NSWCA 90
which considered whether the appellants occupied positions sufficient to bring them within the scope of
the tort of misfeasance.

•        the first appellant was a solicitor who had acted for the Minister for Immigration and Multicultural
and Indigenous Affairs in proceedings before the Administrative Appeals Tribunal where review by the
Tribunal had been sought of a decision to refuse Mr Noori a protection visa. The second appellant was a
firm of solicitors who employed the first appellant.

•       the issue was whether misfeasance could be founded upon breaches by lawyers of their ethical
duties towards a court or tribunal.

•       Chief Justice Spigelman concluded that the appellants did not have any power or authority or any
duties sufficient to attract liability for misfeasance as “a solicitor acting in proceedings, albeit proceedings
concerned with the exercise of a public power or the discharge of a public duty, does not occupy a position
within the scope of the tort of misfeasance in public office”.

•       see also Cannon v Tahche [2002] VSCA 84.

Twining v Curtis [2010] ACTSC 115
Master Harper granted the plaintiff 28 days to serve, in draft form, a further Amended Statement of Claim
prior to the formal grant of leave to include two counts in injurious falsehood and one in misfeasance in
public office.

•       in relation to the tort of misfeasance in public office, the elements of the tort and the shortcomings
of the earlier pleading were dealt with by Master Harper’s decision in Twining v Curtis [2008] ACTSC 3.

•       Mr Twining was employed by the Australian Public Service Commission (the Commission) in
Canberra and alleged that the defendant, Ms Curtis, the Public Service Commissioner, caused a termination
of his employment

resulting in economic loss in the form of loss of earnings and entitlements.

•       in this case, the difficulty with respect to the tort of misfeasance in public office related to the fact
that the plaintiff was not a member of the public but was an employee of the Commission and the
defendant was his superior.
•        Master Harper considered that only the judgment of Brennan J in Mengel addressed the “member
of the public” issue. That is, as to whether such a cause of action was only available to members of the
public rather than employees of government departments and agencies.

•       therefore, Master Harper did not consider that Mengel was authoritative on this issue and instead
relied upon the decision of Tampion v Anderson [1973] VR 715 and Pemberton v Attorney-General (1978)
Tas SR 1

•        in light of the possible application of the principles in Tampion and Pemberton, he believed that the
plaintiff could produce a pleading which was capable, if its assertions were established, of making out a
claim for misfeasance in public office and therefore provided the plaintiff with leave to file a Further
Amended Statement of Claim.

Fernando . . .
       in Fernando v Commonwealth of Australia [2010] FCA 753, the applicant sought damages against
the Commonwealth on the basis of false imprisonment, negligence, breach of statutory duty and
misfeasance in public office.

•       ultimately, he was successful in relation to false imprisonment and misfeasance in public office and
received an award of damages of $3,000 for 1 day of false imprisonment.

•       this case involved the consequences following an unlawful cancellation of a permanent residence
visa.

•       whilst there was a finding against the Commonwealth of false imprisonment, there was a finding
against the Acting Minister for Immigration and Multicultural and Indigenous Affairs, Gary Hardgrave, who
made the cancellation decision and was found liable for misfeasance in public office

•       Justice Siopis referred to Sanders v Snell (1998)

196 CLR 329 as well as Sanders v Snell (No 2) [2003] FCAFC 150.

•      Justice Siopis inferred from the facts and circumstances that at the time that the Acting Minister
made the decision to cancel Mr Fernando’s visa he knew that:

–       Mr Fernando had not been afforded procedural fairness in relation to the decision, and

–       the failure to afford procedural fairness went to the lawfulness of his exercise of the power to
cancel Mr Fernando’s visa.

•       Justice Siopis also inferred that the Acting Minister appreciated that the very object of seeking
submissions from Mr Fernando was so he, as a decision-maker, would take them into account in making
the decision whether to cancel Mr Fernando’s visa.

•       as a result of these inferences, Justice Siopis stated:

“I find, therefore, that at the time that the Acting Minister made the cancellation decision on 3 October
2003, he knew Mr Fernando had not been afforded procedural fairness, that it was, therefore, beyond his
power to cancel Mr Fernando’s visa, and that by making the cancellation decision in those circumstances he
would be acting unlawfully.        Further, I find that with the knowledge of those matters, the Acting
Minister proceeded to cancel Mr Fernando’s visa, rather than adjourn the making of that decision to await
the arrival and consideration of Mr Fernando’s submissions.         I find that he proceeded to make the
decision on that day for the very purpose of ensuring that Mr Fernando would be taken to immigration
detention immediately on his release from Acacia prison on 5 October 2003, and with the intention that
this should happen.”

•      Justice Siopis found that the Acting Minister engaged in misfeasance in public office which caused
Mr Fernando to be unlawfully detained for 1 day and as a result the Acting Minister was liable to Mr
Fernando for the sum of $3,000 being the concurrent liability to that in respect of the false imprisonment.

Who is a “public officer”?
as to who is a “public officer” is an interesting and difficult question itself.

•      a public officer is one who exercises statutory or prerogative power. The following persons have
been held to be public officers:

–       police officers (Farrington v Thompson [1959] VR 286),

–       Ministers (Bourgoin v Ministry of Agriculture, Fisheries & Food [1986] QB 716, Court of Appeal),

–       Councils (Dunlop v Woollahra Municipal Council [1981] 1NSWLR 76), and

–       town clerks (Smith v East Elloe Rural District Council [1956] AC 736).

•       there is Canadian authority that may have applied the tort to the Premier of Quebec for maliciously
cancelling a restaurant liquor licence (Roncarelli v Duplessis [1959] SCR 121).

Key Messages
    all administrative decision makers need to bear in mind the consequences of their decisions and be
      aware of the possibility that claims for misfeasance in public office may be made in relation to
      decisions which are adverse to the interests of members of the public.

•        the key is for administrative decision makers to be aware of the elements of the tort of misfeasance
in public office, eg. training.

•        any further developments in the decision of Twining v Curtis may also be interesting to the extent
that it may resolve the issue as to ‘who is a member of the public’ for the purposes of being able to make a
claim for

misfeasance in public office, that is, as to whether it includes employees of a department or agency.

•       allegations of misfeasance in public office need to be pleaded with sufficient detail (see Pharm-a-
Care Laboratories)

•       the tort of misfeasance in public office is one that will no doubt develop and grow in scope in the
near future.

•       the elements of the tort are:

1.      an invalid or unauthorised act;

2.      done maliciously (i.e. intentionally), with knowledge, with reckless indifference or deliberate
blindness;

3.      by a public officer;
4.   in the purported discharge of his or her public duty;

5.   which causes loss or harm to the plaintiff.

								
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