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Rediscovering an ancient tort

Rediscovering an ancient tort

By Jeremy King and Yusur Al-Azzawi

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The recent decision of Mullett has impacted on the development and accessibility of the unusual tort of MiPO, with practical considerations for practitioners seeking to plead misfeasance in tortious litigation.

Snapshot

  • MiPO is the only solely public tort. It has been an obscure tort until recently when several cases expanded on and settled its elements. It is now potentially a strong tool for public accountability.
  • Mullett arose from the suspension and attempted prosecution of the plaintiff, a Victoria Police member. The judgment expanded on and settled many of the tort’s elements. Ultimately, however, the plaintiff failed to make out the cause against the defendants, and in doing so highlighted the difficulties practitioners may face in seeking to plead the tort.
  • Mullett acts as a springboard for an understanding of the principles and application of MiPO.

Plaintiffs pursuing actions against the state for alleged misconduct of its officers may have available a host of unusual and unique torts through which to pursue litigation. One such tort, which has existed for more than 300 years, is misfeasance in public office (MiPO). However, despite being one of the oldest existing torts, it is only in the past 25 years that the tort has comprehensively developed in Australian jurisprudence. MiPO is the only “truly public tort”,1 developed to provide an avenue for individuals to address situations where public officers abused their power. It is potentially a powerful tool for holding government officials accountable for their actions and compensating those affected. Though a possible instrument for public accountability, the tort remains limited to its original intention – to hold answerable instances of “conscious maladministration rather than careless administration”.2

The High Court first considered MiPO3 in Northern Territory v Mengel (Mengel)4 and the case remains Australia’s leading authority on the scope of the tort. However, until the recent case of Mullett v Nixon & Ors (Mullett)5 the elements of the tort were yet to be fully settled in Australian law. Mullett helpfully elaborated on the tort’s elements and limitations and highlighted the practical issues for plaintiffs seeking to establish MiPO.

Creation of the tort

The judicial intent behind the creation of MiPO is crucial to a proper understanding of the tort. MiPO is said to have first appeared in Holt CJ’s judgment in the English case of Ashby v White (Ashby)6 in which constables holding electoral duties barred a citizen from voting in a parliamentary election in a way that was fraudulent and malicious. Holt CJ held that:

“If public officers will infringe men’s rights, they ought to pay greater damages than other men, to deter and hinder other officers from the like offences . . . to allow this action will make public officers more careful to observe the constitution of cities and boroughs . . .”7

The judgment focuses on the idea of holding public officers liable for “mischief” where they might “prejudice the peace of a nation”.8 Further, the case demonstrates the judicial desire for public officials to be held accountable for morally outrageous behaviour.9 The modern elements and scope of MiPO have changed greatly from Holt CJ’s characterisation, however, the policy considerations underlying Ashby remain relevant,10 namely that there is an “obvious public interest in bringing public servants guilty of outrageous conduct to book”.11 This dictum must be understood within tort law’s primary intent to compensate, rather than to punish.12 However, the tort may also attract an award in exemplary damages in the appropriate fact scenario.13

The tort was re-enlivened in Australian jurisprudence in Mengel and has further developed in the cases of Leerdam v Noori,14 Sanders v Snell15 and Lock v Australian Securities and Investments Commission.16 In Mengel, government cattle stock inspectors had told cattle farmers, the Mengels, not to take their cattle to market, suspecting that the stock was infected with disease. The farmers complied. It was later discovered that the agreement between cattle farmers and government inspectors, which granted the inspectors their powers in this case, had expired between the government and the Mengels. Incidentally, although not materially relevant to establishing the tort, the inspectors had also erred in their suspicions. In this case, the Court found that the public officials had acted beyond the scope of their power, but in good faith. Accordingly, they were excluded from liability in misfeasance. This case is crucial to the development of MiPO as the High Court set out the five critical elements of the tort that must be made out. These are known as the “Deane J elements”:

  • an invalid or unauthorised act
  • done maliciously
  • by a public officer
  • in the purported discharge of his or her public duties
  • which causes loss or harm to the plaintiff.

Other subsequent commonwealth cases have elaborated on the elements set out in Mengel. For example, in the case of Odhavji Estate v Woodhouse17 the Court held that MiPO also applied to omissions that were beyond the power of public officials. However, Mengel remains the leading authority in Australia for the tort.

Mullett

T Forrest J discussed the Deane J elements and the associated issues with establishing them in Mullett, the leading Victorian decision on the tort. The factual matrix of this case, as with any case involving MiPO, is complex. Then Victoria Police Chief Commissioner Ms Nixon and other senior Victoria Police members suspended the plaintiff with pay from Victoria Police on 16 November 2007 while he was the subject of an investigation by the then Office of Police Integrity (“the first suspension”). The plaintiff was suspended on the grounds that Ms Nixon had a reasonable belief he had committed an offence punishable by imprisonment, namely perjury. The plaintiff was charged and suspended a second time, this time without pay, on 29 July 2008, but ultimately the charges were withdrawn. The plaintiff claimed his prosecution by Ms Nixon (first defendant) and the conduct of other officers, including Deputy Commissioner Kieran Walshe (second defendant) and Superintendent Wayne Taylor (third defendant), was malicious and that the media attention had significantly damaged his career. The plaintiff pleaded MiPO in respect to both “the first suspension” and the charges and prosecution against him.18

Elements of the tort in Mullett

The judgment summarised each of the elements of the tort.

Element 1: Invalid or unauthorised act

T Forrest J confirmed an obvious point, being that there was no tortious liability for an act or omission that is done or made in valid exercise of power.19 He then clarified that acts beyond the power of public officials include acts that are invalid for want of procedural fairness.20 Interestingly, T Forrest J also notes that

the invalidity of the act is automatically proven if the plaintiff successfully proves targeted malice21 discussed below.

Element 2: Malice

This is perhaps the most controversial element because, similar to malicious prosecution, the plaintiff is required to establish that the invalid or unauthorised act was done maliciously. The plaintiff must, therefore, conduct an examination of the tortfeasor’s state of mind with respect to two factors – the illegality or unauthorised nature of the act and the harm that may flow to the plaintiff as a result of the act.22 T Forrest J referred to existing case law and elaborated on this element:

b) The exercise of power must have been accompanied by one or other of the following:

an exercise of power knowing that he or she was acting in excess of power and intending to cause harm to the plaintiff (“targeted malice”)

reckless indifference as to whether the act was beyond power or whether it would cause harm to the plaintiff

reckless indifference as to whether the act was beyond power and there was a foreseeable risk of harm to the plaintiff.23

Perhaps the most interesting aspect of the judgment is the confirmation that knowledge, or recklessness as to knowledge of the act’s invalidity, satisfies the threshold of “malice”. This has been raised in several cases including Mengel24 and SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs,25 and malice (intentional or reckless) amounting to misfeasance was successfully made out in the Victorian case of De Reus v Gray26 and more recently (and after Mullett) in the Federal Court of Australia Full Court decision Nyoni v Shire of Kellerberrin.27 However Mullett expanded this limb of the tort substantially from the other cases and, in doing so, potentially widened its scope. This may be particularly useful to plaintiffs given the long-standing difficulty in establishing the “malice” element.

Element 3: Public officer

The act purported to amount to misfeasance must have been carried out by a public officer. Though the usual understanding of this is employees of public departments or offices, there is some debate around the parameters of “public office” and the precise boundaries remain unsettled at law.28

It is worthwhile to note that this element has the potential to widen the scope of the tort if future judgments find liability for government contractors, public prosecutors and other legal persons exercising a public power for a time.

Element 4: Purported discharge of duties

The tortfeasor’s invalid act must have been in the purported discharge of duties. It may be that the tortfeasor’s “wilful refusal” to perform a duty amounts to the tort.29 However, in such cases, the plaintiff must establish that the tortfeasor either consciously chose not to perform the duty or consciously disregarded (and not simply erred as to) whether they were under a duty.30

There is also uncertainty as to whether the duty or power in itself must have a “public” aspect, and what that aspect might be.31 Not all functions of public officers are characterised as public and it has been suggested that if the function or conduct in question has a private sector equivalent, it may give rise to a defence against MiPO.32 This too, however, is unsettled at law.33

Element 5: Harm

The act must have caused loss or harm to the plaintiff, and the plaintiff would not or might not have suffered that harm if the public officer’s power had been validly exercised.34

Outcome and analysis of Mullett

As noted above, a key issue faced by a plaintiff seeking to utilise MiPO is establishing the tortfeasor’s state of mind in respect to the alleged acts performed. In the absence of evidence that is a “smoking gun”, such as a diary note, interview or recording, the plaintiff must argue an inference of the defendant’s malice, and establish the tort by circumstantial reasoning.

Inferential reasoning to argue malice was harnessed by the plaintiff in Mullett.35 The plaintiff submitted that Ms Nixon had a strong motivation, among other things, to expel him from his position in the Police Association, and that her true purpose was to damage his career by harming his reputation and suspending him.36 Ultimately, T Forrest J decided that on the evidence presented to him, the plaintiff was unable to establish any malice on the part of the defendants and, therefore, he failed in establishing MiPO despite making no adverse findings in respect to the reliability or credibility of any party’s evidence.

Issues for practitioners and plaintiffs

When considering pleading MiPO, the factual basis for its elements must be assessed. Of all the tort’s elements, the critical obstacle for a plaintiff pleading MiPO will be proving that the defendant acted maliciously as opposed to incompetently but honestly. This was the distinction highlighted by Gummow J when he stated that the tort “concerns conscious maladministration rather than careless administration”.37 Jurisprudence has continued to reinforce this, as have various judges in upholding the defence of honest but gross incompetence.38 The difficulties faced by plaintiffs and the high threshold before them in establishing malice was demonstrated in Lock.39 Further, the recent case of Frangieh (No 3)40 restated Lock with respect to malice, holding that “mere error or irrationality or poor decision making are not sufficient to ground a finding of bad faith”.41 The decision affirmed Gleeson J in Lock who took the elements from SBBS v Minister for Immigration and Indigenous Affairs.42 Gleeson J noted that “it is a large jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism”.43

Perhaps the key takeaway from Mullett is the confirmation that “reckless indifference” is enough to constitute malice. Arguably, this means that a plaintiff does not have to prove the targeted malice often referred to in Mullett but merely that the defendant showed reckless indifference as to his or her conduct in respect of the unauthorised or invalid act. This is a lower bar and in some cases may ameliorate the difficulties faced by plaintiffs in attempting to establish malice. Reckless indifference still requires subjective inference however, and it remains to be seen whether it will be any less difficult to establish that an act was beyond power, rather than generally careless or incompetent. The recent case of Obeid v Lockley (Obeid)44 would suggest not. The NSW Court of Appeal dismissed the appeal in Obeid, which sought to make out the subjective element of MiPO to the threshold of reckless indifference.

Despite Mullet’s helpful elaboration of the tort, plaintiffs should be mindful of the general judicial reluctance to find liability in MiPO. This is illustrated in several cases, including Garrett v Attorney-General (Garrett)45 and Commonwealth of Australia v Fernando (Fernando).46

In Garrett, a supervising sergeant was accused of MiPO when he covered up the evidence of another officer having raped the plaintiff. The sergeant’s justification was that the plaintiff had not wanted the offending constable to face prosecution for his crime, but simply be relocated away from her. The sergeant’s justification was accepted by the jury. Despite the apparently evident disregard for the scope of his powers, the Court ruled that there was not enough evidence to prove the sergeant knew or actually suspected the reputational loss or psychiatric harm the plaintiff could possibly suffer from any cover up.

In Fernando, the Full Court of the Federal Court stated that where there are conflicting inferences that may be drawn from a set of circumstances, and one of those inferences is favourable to the alleged tortfeasor, “the Court will not be satisfied that the . . . case has been proved to the necessary standard”.47

The decisions of Garrett and Fernando, and very recently Obeid, act as a warning to practitioners that although there are several ways to establish malice, seeking to establish it by way of recklessness bears a high evidentiary burden on plaintiffs.

The same challenges demonstrated in these cases were evident in Mullett. In that instance, T Forrest J accepted the evidence before him, as well as the reliability and credibility of both the defendants and the plaintiff.48 T Forrest J nevertheless found no malicious motive, whether by intention or reckless indifference, in the defendants’ actions towards the plaintiff.49 Further, he gave little weight to the contextual evidence put forward by the plaintiff to infer malice.

Conclusion

MiPO may check public power by providing a remedy for its misuse. It may have utility in a narrow range of cases. After its inception, the difficulty and relative obscurity of the tort pushed it into near disuse, but it has experienced a marked resurgence over the past 25 years. Following a trend of cases developing the principles guiding the tort’s nature and use, Mullett enunciated and expanded on MiPO in ways that significantly clarify it for practitioners. At MiPO’s core is public accountability. Fundamental, however, is the tort’s key focus of checking only deliberate abuse of public power and consequently, a plaintiff seeking to rely on it is likely to face significant challenges of proof.

 

Jeremy King is a principal lawyer at Robinson Gill Lawyers. He holds a Masters of International Law of Human Rights and Criminal Justice (Utrecht University), is an LIV accredited specialist in personal injury law and runs an extensive practice in police torts litigation.

Yusur Al-Azzawi is a junior lawyer at Robinson Gill Lawyers and a member of the Australian Lawyers for Human Rights. She has worked in both private police tort litigation and police accountability in the community legal sector.

 

 

1. Mark Aronson, “Misfeasance in Public Office: A Very Peculiar Tort” (2011), 35 Melbourne University Law Review 1-51, 2.

2. Pyrenees Shire Council v Day (1998) 192 CLR 330, 376 [124].

3. Davis, “Misfeasance in Public Office, Exemplary Damages and Vicarious Liability”, (2010), 64 AIAL Forum 59-70, 59.

4. (1998) 185 CLR 307.

5. [2016] VSC 512.

6. (1703) 92 ER 126.

7. Note 6 above, 167.

8. Note 6 above, 167.

9. Note 1 above, p15.

10. Note 1 above, p6.

11. Watkins v Secretary of State for the Home Department [2006] 2 AC 395, 403 [8].

12. Note 1 above, p7.

13. Note 3 above; Robert J Sandler, “Liability for a Misfeasance in Public Office” (1992), 14 Sydney Law Review 137, 139; and eg, De Reus v Gray [2003] 9 VR 432.

14. [2009] NSWCA 90, 210 (Leerdam).

15. (1998) 196 CLR 329 [37] (Sanders).

16. [2016] FCA 31 [128] (Lock).

17. (2003) 233 DLR (4th) 193.

18. Note 5 above, at [1]-[12].

19. Note 5 above, at [16].

20. Note 19 above.

21. Note 5 above, at [16].

22. Note 21 above.

23. Note 21 above, citing Sanders; Poynder v Kent [2008] VSCA 245, 74.

24. Note 4 above, at [357] (Brennan J).

25. [2002] FCA 1377.

26. [2003] 9 VR 432.

27. [2017] FCAFC 59.

28. Note 1 above, p4; note 5 above, p60; Andrew Berger, Tom Howe QC, “Legal Briefing: Misfeasance” (2012) 98 Australian Government Solicitor (online), 1; Plaintiff M61/2010E v Commonwealth (2010) 272 ALR 14.

29. Note 1 above, p38.

30. Note 1 above, p38; note 3 above, p61-62.

31. Note 1 above, p38; Note 27 above, Berger; Cannon v Tahche (2002) 5 BR 317; Leerdam.

32. Note 28 above, Berger.

33. See Emanuele v Hedley (1998) 179 FCR 290 [34]; Commissioner of Taxation v Day [2008] HCA 53 [34].

34. Note 5 above, at [16].

35. Note 5 above, at [11].

36. Note 5 above, at [11].

37. Pyrenees Shire Council v Day (1998) 192 CLR 330, 376 [124].

38. See Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1, 292 [188]; Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453 (27 April 2010).

39. [2016] FCA 31.

40. Deputy Commissioner of Taxation v Joseph Frangieh (No 3) [2017] NSWSC 252.

41. Note 39 above, at [429], citing Lock [2016] FCA 31 [127].

42. (2002) 194 ALR 749 [43]-[46].

43. Lock [2016] FCA 31 [127].

44. [2018] NSWCA 71.

45. [1997] 2 NZLR 332.

46. [2012] 287 ALR 267.

47. Note 44 above, 28-29 [130].

48. Note 5 above, at [11].

49. Note 5 above, at [160].

 

 


Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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