Dear Colleagues;
Those who are interested in the tort of misfeasance in public office (MPO) will, I think, find the decision in
Obeid v Lockley [2018] NSWCA 71 (12 April 2018)
https://www.caselaw.nsw.gov.au/decision/5acbed44e4b087b8baa882c0 worth reading. What I think could with respect be described as a very high-powered bench of the NSW Court of Appeal (Bathurst CJ, Beazley P, Leeming JA) has given a decision which provides
some helpful clarification of some areas of this tort which are still disputed.
The background to the case is a series of long-running proceedings in the Independent Commission against Corruption in NSW (which has also regularly spilled out into the courts) involving corrupt former Labour
politician Eddie Obeid and his family and associates. In the facts giving rise to this case, two ICAC officers had raided some premises in search of evidence in relation to one specific allegation (involving corrupt dealings with a mining license) and in the
course of doing so videoed a document relating to another incident of corruption (involving a water supply company). This document then led to a separate ICAC investigation; part of the document was redacted but (possibly by mistake) other parts were
released publicly at a hearing and formed part of a newspaper article which Mr Obeid objected to.
In the course of the proceedings for MPO against the investigating officers, the court considered (1) the meaning of “public officer”, and (2) whether MPO could be established if it was merely “foreseeable”
that harm would follow a misuse of power, as opposed to the stricter standard of liability where actual knowledge of, or reckless indifference to, harm needs to be established.
On these issues, the court rules that
- The officers concerned were “public officers”; see Bathurst CJ at [114]
In these circumstances, it seems to me that a “public officer” would at least include persons who, by virtue of the particular positions they hold, are entitled to exercise
executive powers in the public interest. If such an entitlement is conferred on them and they misuse the power, they may have committed the tort and be liable for damage which results from their conduct
- The standard of knowledge required for the tort, however, was the stricter standard, and it was not sufficient to establish that the officer could merely
“foresee” possible harm. See Bathurst CJ at [153]:
in my view, it was necessary for them to establish either that the respondents were aware that the appellants were likely to suffer reputational harm, or that they were recklessly
indifferent to the fact that the appellants were likely to suffer reputational harm. It is not sufficient for the appellants to establish that it was reasonably foreseeable that they were likely to suffer reputational harm.
See also detailed comments in support of this view by Leeming JA at [222]-[243]. In coming to this view both judges acknowledge that they are disagreeing with
the view taken by the Full Court of the Supreme Court of South Australia in State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331; [2010] SASC 56, and that in other situations the High Court’s comments in
Farah v Say-Dee would require them to follow the Lampard-Trevorrow decision unless convinced it was “plainly wrong”. But both say that the
Farah deference rule cannot apply where an appellate court believes that another appellate court has wrongly interpreted a previous decision of the High Court, which they say is the situation here. In adopting the view they do, they also note that they
are following a number of appellate decisions from other Commonwealth countries- eg
Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 197, 223-3, 230-1, 236;
Garrett v Attorney-General [1997] 2 NZLR 332 at 349 (see Leeming JA at [242](4).
There are other points made in the case but these seem to be the main ones of general interest. Colleagues Mark Aronsen and Tina Cockburn are cited; I would
like to have seen reference to Erika Chamberlain’s recent excellent monograph
Misfeasance in a Public Office (2016), though it is worth noting that the view taken there at pp 139-142 that the “subjective” approach to intention should be followed, is in effect supported by this decision.
Regards
Neil
NEIL FOSTER
Associate Professor, Newcastle Law School
Faculty of Business and Law
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