FEDERAL COURT OF AUSTRALIA

Nyoni v Shire of Kellerberrin [2017] FCAFC 59

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed in part as against the first and second respondents and dismissed as against the third, fourth and fifth respondents.

2.    The orders made on 23 November 2015 be varied by:

(a)    in order 2, deleting “first” and substituting “third”;

(b)    in order 3, deleting “the first respondent’s costs and the costs of the second to” and substituting “the costs of the third and”.

3.    The proceedings be remitted to the primary judge to assess damages and questions of costs as between the applicant and first and second respondents.

4.    The first and second respondents pay 50% of the appellant’s costs.

5.    The appellant pay the third and fourth respondents’ costs, and the costs, if any, of the fifth respondent’s submitting appearance.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH AND RARES JJ:

1    Emson Nyoni (the appellant) was a pharmacist. He had migrated to Australia from Zimbabwe. In 2003, he bought and then operated, until early 2013, the only pharmacy in Kellerberrin, Western Australia. Mr Nyoni brought proceedings against the Shire of Kellerberrin (the first respondent), two of its successive chief executive officers, Frank Peczka and Darren Friend (the fourth and second respondents), its President, Stan McDonnell (the third respondent) and an electrical contractor, Peter Mitchell (the fifth respondent).

2    The primary judge, in a careful and thorough judgment, dealt with the five substantive causes of action on which Mr Nyoni relied. Those were claims that:

(a)    Mr Peczka and the Shire acted in concert with Robert Bateman, a senior investigating officer of the Health Department, in trespassing upon Mr Nyoni’s pharmacy property in October 2007 (the 2007 trespass claim);

(b)    the Shire, by one or more of its agents or officers, had made disparaging statements about Mr Nyoni’s business and, thereby, engaged in misleading or deceptive conduct and/or malicious falsehood (the false statements claim);

(c)    the Shire, Mr Friend and Mr McDonnell were liable as joint tortfeasors with Mr Mitchell in trespassing upon Mr Nyoni’s property in the course of disconnecting the electricity supply to Mr Nyoni’s pharmacy in March 2010 and in October 2010 (the 2010 trespass claim);

(d)    the conduct of Mr Friend and Mr McDonnell in relation to the disconnection of the electricity supply to Mr Nyoni’s pharmacy on 14 October 2010, amounted to misfeasance in public office (the misfeasance claim); and

(e)    the Shire engaged in misleading or deceptive conduct by publishing the minutes of a Shire Council meeting which disparaged Mr Nyoni’s pharmacy business (the minutes claim).

3    The primary judge found in Mr Nyoni’s favour on one aspect of the 2010 trespass claim. He held that Mr Mitchell had committed a trespass at the pharmacy on 14 October 2010 when he intentionally entered and remained on the premises without consent of owner or lawful authority and, in the course of which, he disconnected the electricity without any lawful basis to do so. His Honour awarded Mr Nyoni $12,000 in damages against Mr Mitchell, that included $4,000 in aggravated damages, and ordered Mr Mitchell to pay Mr Nyoni’s costs in relation to the issues between them.

4    However, his Honour dismissed with costs all of Mr Nyoni’s claims against the Shire and Messrs Peczka, Friend and McDonnell, including the balance of the 2010 trespass claim.

The appeal – introduction

5    Mr Nyoni, who represented himself both below and in the appeal, argued that his Honour erred in dismissing those claims. His written submissions closely followed his grounds of appeal. At the beginning of the hearing of the appeal, the Full Court suggested that Mr Nyoni might begin by developing his argument on why the primary judge erred when deciding the 2010 trespass claim by failing to find that the Shire, Mr Friend and Mr McDonnell were liable, as Mr Nyoni claimed, as joint tortfeasors with Mr Mitchell.

6    After he addressed us on that aspect of the appeal and how it also bore on the misfeasance claim, the Full Court informed him that we had read his written submissions and that we would take them into account so that he need not repeat them. Mr Nyoni said that he would elaborate on two aspects of his written submissions, which he did, before concluding his argument.

7    In essence, Mr Nyoni’s grounds of appeal challenge his Honour’s factual findings. It will be convenient for us to describe sequentially each set of circumstances found by his Honour for the five claims, the basis of Mr Nyoni’s challenge to the particular ground and our consideration of it.

8    An appellant who brings an appeal that challenges a judge’s findings of fact, arrived at after seeing and hearing witnesses and making findings based on the judge’s assessment of the witnesses’ credibility, must demonstrate an error in the judge’s fact-finding within the principles specified in Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at 558-559 [43], where French CJ, Bell, Keane, Nettle and Gordon JJ said:

If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. [Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479-81 per Deane and Dawson JJ; Fox v Percy (2003) 214 CLR 118 at [29] per Gleeson CJ, Gummow and Kirby JJ; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at [76] (Miller & Associates) per Heydon, Crennan and Bell JJ.]. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, [Fox 214 CLR at 128 [28] per Gleeson CJ, Gummow and Kirby JJ] or they are “glaringly improbable” or “contrary to compelling inferences” [Fox 214 CLR at 128 [29] per Gleeson CJ, Gummow and Kirby JJ. See also Miller & Associates 241 CLR at 380-381 [76]].

9    The primary judge heard the evidence and final submissions over 12 days in July 2014. He made individual assessments of the 17 witnesses that demonstrated both the care with which he considered all of the evidence and the difficulty that an appellate court necessarily has in reviewing, on a rehearing, his Honour’s factual findings. In particular, his Honour said that he had approached the evidence of Mr and Mrs Nyoni, Mr Friend and Mr Mitchell with caution, accepting some and rejecting other parts of their evidence.

Regulatory Background

10    His Honour found that the regulation of pharmacists in Western Australia occurred, relevantly, under:

    the Poisons Act 1964 (WA): That Act provided that a pharmacist had to be licensed to sell any “poison” at any particular premises. A licence required the holder to satisfy the State’s chief executive officer (CEO) responsible for administering the Poisons Act that he or she was a fit and proper person to hold a licence and that their premises were properly and hygienically equipped for sale of the poisons. The CEO had power to suspend or revoke a licence at any time and s 54(1) of the Poisons Act provided that an authorised officer, such as Mr Bateman claimed to be, could, “for the purpose of ascertaining whether this Act is being complied with, at any reasonable time”, enter any premises occupied by a licensee or from which poisons were sold, and inspect or examine any room or part of the premises and any goods and records located there.

    the Pharmacy Act 1964 (WA): That Act regulated the registration of pharmacists and their professional practice standards. A pharmacist had to be licensed under the Act in order to carry on business and the premises from which such a business operated had to be registered under that Act.

Disciplinary proceedings could be taken against a pharmacist if he or she were guilty of “carelessness, incompetence, impropriety, misconduct or infamous conduct in a professional respect” (s 32(1)(c)). The Pharmaceutical Council could bring proceedings before the State Administrative Tribunal alleging that there was “proper cause for disciplinary” action against a pharmacist (s 32(2)). The Tribunal could deregister, suspend, fine or censure a pharmacist in respect of whom it found that such proper cause existed (s 32(3)). The Act provided that the Council could appoint a person to investigate and report to it on a matter relevant to the performance of its functions (s 31A).

If the Council determined that in a particular case an investigator had reasonable grounds for believing that entry to premises was necessary for the purposes of an investigation, the investigator could apply to a magistrate to issue a warrant under s 31E. A warrant under s 31E(1) authorised the investigator to enter and inspect the premises named in the warrant, to require persons on those premises to answer questions, produce documents or things in his or her possession concerning the investigation and to inspect and copy documents so produced (s 31E(2)). The Council’s registrar was Robert Brennan, and Timothy van Bronswijk was one of its pharmacist field officers.

    The National Health Act 1953 (Cth): That Act regulated premises from which pharmacists could dispense prescriptions that could be supplied at discounted prices under the Pharmaceutical Benefits Scheme (PBS).

The 2007 trespass claim – background

11    Mr Nyoni began operating his pharmacy from 92 Massingham Street, Kellerberrin in 2003. On 16 January 2007, Mr Peczka, whose evidence the primary judge accepted, wrote, as the then chief executive officer of the Shire, to Mr Nyoni. The letter noted that an inspection of the pharmacy by a Shire environmental health officer had revealed cobwebs in the display and water fridge areas and an accumulation of empty boxes at the rear service entrance. Next, Mr Peczka wrote to Mr Nyoni on 22 January 2007 that a follow-up inspection had determined that the premises were “reasonably clean”.

12    During the period to early 2007, three local institutions, Kellerberrin Hospital, a frail aged care home and a care facility for persons with disabilities, claimed to have experienced difficulties with the performance of the pharmacy in its supplying “Webster packs” to them. Those packs contained medication dosages prepared by the pharmacy in separate compartments for patients based on what each patient had to take at four different times each day for a week. The care facility terminated its contract with the pharmacy in early 2007 on the basis of its dissatisfaction with Mr Nyoni’s services and in March 2007 the hospital ceased using the pharmacy’s Webster pack services for its nursing home residents, although the hospital continued using those services for other patients.

13    His Honour found that from time to time between 2007 and 2010, members of the public had complained to the Shire, the State Department of Health and the Pharmaceutical Council that, among other matters, the pharmacy was dirty, did not have sufficient stock and had irregular operating hours. There were also complaints that Mrs Nyoni had dispensed medicine in her husband’s absence.

14    In September 2007, officers of the Department discussed the investigation of one complaint. Ultimately, the Department decided to send Mr Bateman to Kellerberrin to investigate the pharmacy in early October 2007 and it informed some of the complainants at the hospital of this.

15    Mr Nyoni claimed that when Mr Bateman visited Kellerberrin on 2 and 3 October 2007, he had trespassed on the pharmacy premises and, when doing so, Mr Bateman acted in concert with Mr Peczka so as to make Mr Peczka and the Shire liable as joint tortfeasors in Mr Bateman’s trespass. Mr Nyoni contended that Mr Bateman had entered the pharmacy on these occasions for a purpose that went beyond his authority to do so under s 54 of the Poisons Act, namely for the purpose of investigating Mr Nyoni’s professional conduct generally, including his alleged dispensing errors. Mr Nyoni argued that because Mr Bateman entered the pharmacy on these occasions for a wider purpose than the discharge of his limited powers under s 54 of the Poisons Act, he became a trespasser. Mr Nyoni also alleged that Mr Bateman was acting in concert with Mr Peczka and the Shire in pursuing the investigation on 2 and 3 October 2007 in excess of his statutory powers. Alternatively, Mr Nyoni claimed that Mr Bateman became a trespasser ab initio by abusing his authority under s 54 when he began investigating other matters while in the pharmacy. This is the 2007 trespass claim.

16    The primary judge weighed the conflicting evidence. Mrs Nyoni had said that while Mr Bateman was in the pharmacy on 2 October 2007, Mr Peczka had come in two or three times at intervals of about 1½ to 2 hours apart. She said that on one occasion when Mr Bateman had left on a break, he had attended at the Shire offices and met with Mr Peczka there.

17    His Honour accepted the evidence of Mr Bateman and Mr Peczka that Mr Peczka never came to the pharmacy and spoke to Mr Bateman on 2 October 2007. He found that the evidence of both Mr and Mrs Nyoni was unsatisfactory in relation to both Mr Peczka’s presence at the pharmacy and his acting in concert with Mr Bateman. The primary judge found that Mrs Nyoni was unable to give evidence of the content of any conversation between Mr Bateman and Mr Peczka, and his Honour set out instances from the transcript of why he found Mr Nyoni’s evidence on this claim inconsistent and unconvincing.

18    The primary judge found that the 2007 trespass claim was the product of Mr Nyoni reconstructing events, based on his own evidence, after he had read minutes of a Shire Council meeting of 16 February 2010. His Honour found that Mr Peczka did not enter the pharmacy or speak to Mr Bateman while the latter was there. And, he found that Mr Peczka (as well as any other Shire employee) had not acted in concert with Mr Bateman or had a common design under which Mr Bateman did anything in the pharmacy that Mr Nyoni alleged amounted to a trespass. Accordingly, his Honour dismissed the October 2007 trespass claim against Mr Peczka and the Shire.

19    However, his Honour declined to make a “definitive finding” about whether Mr Bateman himself had committed trespass on 2 and or 3 October 2007. That was because Mr Nyoni had brought separate proceedings raising the same claim against Mr Bateman in the Supreme Court of Western Australia (the Supreme Court proceedings). The primary judge did say that “the evidence which emerged shows that Mr Bateman has a serious case to answer in relation to Mr Nyoni’s claim of trespass”.

The 2007 trespass claim – Mr Nyoni’s submissions

20    Mr Nyoni challenged the findings of fact that the primary judge made that, first, Mr Peczka and the Shire had not acted in concert with Mr Bateman in relation to his conduct in the pharmacy on 2 and 3 October 2007 and, secondly, Mr Peczka was a satisfactory witness.

21    Mr Nyoni’s written submissions contended that his Honour should have found that Mr Peczka did enter the pharmacy on two or three occasions on 2 October 2007 and, while there, had discussions with Mr Bateman. Mr Nyoni contended that the primary judge should not have found Mr Peczka to be a satisfactory witness.

22    Mr Nyoni relied on the primary judge’s finding that on 2 October 2007 at the Shire offices Mr Bateman had asked Mr Peczka about certain addresses. Mr Nyoni argued that this finding supported his submission that Mr Bateman “procured confidential information about names and addresses of individuals in the Shire including a former locum pharmacist for” Mr Nyoni. However, in our opinion, it is clear that his Honour’s finding gave no support to that submission.

The 2007 trespass claim – consideration

23    Mr Nyoni’s oral and written argument in relation to the 2007 trespass claim, in substance, was no more than a disagreement with findings of fact that the primary judge made on the contested evidence of witnesses. Mr Nyoni was unable to identify any error in the factual findings that his Honour made that would enliven the power of the Full Court to interfere with those findings: Robinson Helicopter 331 ALR at 558-559 [43].

24    The primary judge made the challenged findings in relation to the October 2007 trespass claim having seen and heard the witnesses. In the circumstances of this appeal, Mr Nyoni did not establish any basis that could justify any interference with the primary judge’s findings about the October 2007 trespass claim. Accordingly, this ground of appeal fails.

The false statements claim – background

25    Mr Nyoni alleged that Mr Peczka, the Shire and seven individuals, whom he alleged acted on behalf of the Shire, had published malicious falsehoods and or engaged in conduct that was misleading or deceptive by making statements to customers of the pharmacy that disparaged, first, Mr Nyoni in his profession as a pharmacist and, secondly, his business. He alleged that those publications caused him loss and damage. The seven individuals were Mr Bateman, Theresa Beech, Noreen Bonser, Bernice Del Borrello, Mr van Bronswijk, Raymond Griffiths (the deputy chief executive officer of the Shire) and Heather Sharman.

26    His Honour set out the five classes of disparaging statements in his reasons. These included statements that Mr Nyoni was dispensing “wrong and foul medicines” and therefore was going to lose his licence, that he had a terminal illness and that he was not fit to dispense medicines.

27    His Honour found that Mr Nyoni did not lead any evidence that established that any of the persons whom he alleged had published the false statements, had actually done so. The primary judge noted that Mr Nyoni had not even called as a witness any person to whom he alleged any statement complained of was made. In addition his Honour found Mr Nyoni had not proved that any of the seven individuals (leaving Mr Peczka and Mr Griffiths aside) had any relationship to the Shire attracting its potential vicarious or accessorial liability for the making of any statement complained of. Accordingly, given this evidentiary vacuum, his Honour dismissed the false statements claim and said that it “is apparent that this claim should never have been made”.

The false statements claim – Mr Nyoni’s submissions

28    Mr Nyoni’s notice of appeal and written submissions contended that his Honour erred in those findings in relation to each of the seven individuals as follows:

    as to Mr Bateman: Mr Nyoni relied on the primary judge’s finding that Mr Bateman had a serious case to answer in relation to the 2007 trespass claim. Mr Nyoni claimed that Mr Bateman created some false records himself and also had acted with Ms Beech in some way to falsify records concerning Mr Nyoni. Mr Nyoni also claimed that Mr Bateman connived with Mr van Bronswijk to conduct “secret trips to Kellerberrin on many occasions to catch [Mr Nyoni] and much more”;

    as to Ms Beech and Ms Del Borrello: Mr Nyoni alleged that they, and other staff, ran Kellerberrin Hospital and looked after an average of two to four elderly permanent residents who needed Webster packs. He asserted that Ms Beech and Ms Del Borrello sent a false complaint to the Pharmaceutical Council concerning one or two Webster packs. He asserted that Ms Beech sent Ms Del Borrello “to answer her questions” at the trial and that Ms Del Borrello “simply ma[d]e up stories that were simply uncorroborated” and created false documents. He asserted that his Honour found the numerous documented false allegations by Ms Beech and Ms Del Borrello to be false.

We note that, in fact, the passage (at [86]-[87]) in his Honour’s reasons, to which Mr Nyoni’s notice of appeal and written submissions referred, related to correspondence between Dr Geoff Masters, the acting director of the Department of Health and the solicitors for the Pharmaceutical Council in early 2009 concerning the lack of evidence available to the Council to pursue complaints against Mr Nyoni in the Tribunal. The Council’s solicitors had noted there that Mr van Bronswijk, who was a field officer for the Council, had taken photographs of the pharmacy, first, in June 2008 that showed its state of cleanliness and repair to be unsatisfactory and, subsequently, in July and October 2008 that showed that Mr Nyoni had made a significant improvement to the state of the premises, which was then acceptable. The letter concluded by noting that there was a “continued failure of most complainants to support the allegations that they make against Mr Nyoni” and there was no compelling evidence that the pharmacy was operated when he was not present;

    as to Ms Bonser and Ms Sharman: Mr Nyoni made no specific submission about Ms Bonser or Ms Sharman;

    as to Mr van Bronswijk: Mr Nyoni argued that his Honour erred in admitting photographs that Mr Nyoni had not seen before the trial; and

    as to Mr Griffiths: Mr Nyoni contended that his Honour erred in finding Mr Griffiths to be a satisfactory witness. Mr Nyoni submitted that Mr Griffiths was the deputy to both Messrs Peczka and Friend, before himself becoming chief executive officer of the Shire in about 2010. Mr Nyoni asserted that Mr Griffiths tried to dissociate himself from his colleagues “for the purpose of evading responsibility for his impugned actions”.

29    Mr Nyoni alleged that all the actions of the Shire and Mr Pezcka (together with the other seven individuals he named) occurred in trade or commerce. He said that “it is common knowledge that [the seven] persons alleged to have made the disparaging remarks did so at the Shire offices, with the support and supervision of the Shire” and did so behind his back.

The false statements claim – consideration

30    It is difficult to relate how Mr Nyoni’s notice of appeal contended that there was any error in, beyond Mr Nyoni’s disagreement with, his Honour’s dismissal of the false statements claim. But, in his written submissions, Mr Nyoni appeared to relate his Honour’s dismissal of that claim to a reason why his Honour should have awarded him damages under ground 11 of the notice of appeal.

31    In our opinion, Mr Nyoni failed to demonstrate that his Honour erred in finding that Mr Nyoni had not called any witness who corroborated his claim or led other evidence that any particular one of the seven persons or Mr Peczka had made any of the statements complained of or that any of those seven had any relationship to the Shire that could make it liable for any such statement, had its making been proved in evidence at the trial. Mr Nyoni’s case on his false statements claim failed before the primary judge because there was no evidence to support it. Mr Nyoni did not identify any such evidence in his submissions on appeal. We see no basis on which it could be said that the primary judge erred in dismissing this claim, let alone that his Honour erred in a way that would warrant interference with his findings to which we have referred above.

32    Accordingly, this ground of appeal fails.

The 2010 trespass claim – background

33    On 6 January 2010, Mr Friend wrote, on behalf of the Shire, to the State Minister for Health, making a formal complaint about the operations of the pharmacy and asking that it be investigated. At same time, the Shire, at the instance of Mr McDonnell and Mr Friend, purchased a property at 96 Massingham Street, Kellerberrin, very close to the pharmacy. The purpose for the purchase of this property, that appeared in the minutes of the Shire Council’s meeting of 16 February 2010, the subject of the minutes claim, was to provide rental accommodation to a pharmacist, Ms Lesley Ashburn, were she to succeed in her application under the National Health Act for a PBS licence that had become available in Kellerberrin after Mr Nyoni had sold his previous licence in late 2009. The Council knew that both Mr Nyoni and Ms Ashburn had applied for the PBS licence. The minutes recorded several adverse reflections on Mr Nyoni and his operation of the pharmacy, and went on to state:

Whilst Council can not be seen to favour one business over another, it is Council’s responsibility to ensure that its community receives access to essential services as part of its “good governance” requirements. (emphasis added)

34    The primary judge found that as at 15 March 2010 Mr Nyoni was in arrears in paying his electricity account to Synergy in respect of the pharmacy. He found that on 15 March 2010 Mr Mitchell disconnected the electricity supply to the pharmacy from outside, and without trespassing on, the pharmacy premises. His Honour dismissed Mr Nyoni’s claim that alleged that Mr Mitchell had trespassed on that occasion as well as his claim that Mr Mitchell, Mr Friend, Mr McDonnell and the Shire were joint tortfeasors in the alleged trespass by Mr Mitchell.

35    However, on 15 March 2010, after the disconnection of the electricity, the Shire’s environmental health officer, Garry Tucker, telephoned Joy Knight of the Department of Health and Mr van Bronswijk to inform them that the pharmacy had been without power from 8:00am that day. Ms Knight then contacted Mr Nyoni and he confirmed that the power was disconnected. She told him that he should not dispense medicine because he could not access customers’ records maintained on his computer. Mr Nyoni told Ms Knight that he had put the pharmacy’s refrigerated items into his home refrigerator which was fully operational.

36    Around 17 March 2010, Mr Friend learned that Ms Ashburn’s PBS licence application had been unsuccessful and Mr Nyoni learned that he had received a new PBS approval.

37    On 17 March 2010, the power supply to the pharmacy was restored. On that day Mr Tucker entered the pharmacy, on Mr Friend’s instructions, and undertook an extensive inspection of the pharmacy and its premises. Mr Tucker took a number of photographs of the premises without the permission of Mrs Nyoni who was present at the time. Later on 17 March 2010, Mr Friend hand-delivered to Mr Nyoni at the pharmacy a letter signed by Mr McDonnell, that stated:

I write on behalf of the Council and the Kellerberrin community concerning the operations of the Kellerberrin Pharmacy and its effect on the general business community in town.

I request that you make yourself available to meet with a delegation from Council as soon as possible to discuss this most important matter.

Please contact the Chief Executive Officer Darren Friend on … to arrange a suitable time for the meeting.

I ask that you give this matter your most urgent attention.

38    Thereafter, as explained by the primary judge in some detail, Mr Friend, Mr McDonnell and the Shire made concerted efforts to pursue complaints against Mr Nyoni with a view to having the licences and authorities necessary for Mr Nyoni to conduct the pharmacy revoked.

39    The second trespass in respect of which Mr Nyoni claimed relief occurred on 14 October 2010. Importantly, Mr Nyoni was not in default of his payment obligations to Synergy in respect of the pharmacy on 14 October 2010, and Synergy had not authorised any disconnection of the power supply to the pharmacy on that day.

40    Nonetheless, on the morning of 14 October 2010, Kerry Varney, who operated as a subcontractor of Synergy with responsibility for disconnecting the electricity supply of its customers who were in default of their payment obligations, instructed Mr Mitchell to disconnect the electricity “at the Nyoni properties”. Mr Mitchell understood that to mean both Mr Nyoni’s house and pharmacy. Mr Varney, contrary to his usual practice, did not send Mr Mitchell a facsimile of a written authorisation from Synergy for that work.

41    After he received those instructions, Mr Mitchell told Mr Friend that, subsequently, he would be cutting off the electricity to both Mr Nyoni’s pharmacy and home. However, Mr Mitchell did not normally inform the Shire of his intention to act on Synergy’s instructions to cut off supply to any Kellerberrin residents before he did so.

42    Mr Mitchell attended at Mr Nyoni’s residence and disconnected the supply at 3:01pm. He then went to the pharmacy and entered the premises. His Honour, having heard conflicting evidence from Mrs Nyoni and Mr Mitchell of what then occurred, found as follows. Mr Mitchell told Mrs Nyoni that he was there with Synergy’s authority to disconnect the electricity to the pharmacy because the account had not been paid. Mrs Nyoni protested that he was not entitled to do so. She asked him to produce written evidence to justify his claim that Synergy had authorised him to disconnect the electricity supply to the pharmacy, but he did not produce any such evidence. Nor did he telephone Mr Varney or take any other step to satisfy himself that Synergy actually had issued a disconnection notice for the pharmacy. Mr Mitchell said that he was in a hurry and was dismissive of Mrs Nyoni’s protest against his claim of entitlement to effect the disconnection. He did so at 3:32pm and Mrs Nyoni then closed the pharmacy.

43    In the meantime, at 3:31pm on 14 October 2010, Mr Friend sent an email to Messrs Bateman and van Bronswijk, and copied it to each of the elected members of the Shire Council, including Mr McDonnell, and three Council officers, that stated:

Subject: PHARMACY POWER

Tim/Robert I have been advised by Peter Mitchell, the local electrician, that he is cutting the power at both the pharmacy and Nyoni residence on Bedford Street this afternoon.

I assume I will see you both tomorrow?

Darren (emphasis added)

44    Mr van Bronswijk replied at 4:04pm as follows:

Please arrange to have the electrician confirm to me in writing on his letterhead (electronically or by facsimile) that he has carried out disconnection of the power supply to both premises once he has done so.

45    His Honour found that Mr van Bronswijk wanted that confirmation for the purposes of pursuing disciplinary action against Mr Nyoni.

46    After effecting the disconnections, Mr Mitchell attended the Shire offices later on 14 October 2010 and co-operated with Mr Friend in composing a letter that was then produced and printed in the Shire offices, signed there by Mr Mitchell and sent, by or under the direction of Mr Friend, from the Shire offices to Mr van Bronswijk, later on the same day. Mr Mitchell’s letter dated 14 October 2010 had his trading name in bespoke letterhead and appeared to be professionally formatted and presented. It read:

To Whom It May Concern

Re disconnection of power to both sites owned by Chemist one being house and other being owner’s business.

Meter number for house is … disconnected at 3.01 pm on 14 October

Meter number for chemist shop is … disconnected at 3.32 pm on 14 October

Please note this is not the first time this has occurred on the same premises. (emphasis added)

47    At about 9:45am on 15 October 2010, Mr Mitchell reconnected the electricity supply to the pharmacy. Mr Friend advised Mr van Bronswijk of this bland fact by email at 10:58am. His Honour found, however, that no one, including Mr Friend, advised Mr van Bronswijk or the Department of Health that Mr Nyoni was not at fault for the electricity supply to the pharmacy being disconnected. The primary judge found that Mr van Bronswijk was left with the false impression that Mr Nyoni had been at fault.

48    Thus, the registrar of the Pharmaceutical Council, immediately, before its statutory dissolution later on 15 October 2010, wrote to Mr Nyoni informing him that the Council considered that the continuous supply of electricity to registered pharmacy premises was essential to the provision of a professional pharmacy service. Dr Robertson of the Department of Health wrote to Mr Nyoni on 19 October 2010 informing him that, in light of the 14 October 2010 disconnection of electricity and the earlier one between 15 and 17 March 2010, any future disconnection would give rise to consideration of whether his pharmaceutical chemist licence for the pharmacy should be suspended.

49    His Honour found that Mr Mitchell’s purpose in advising the Shire in advance, on 14 October 2010, of the impending disconnection was to assist the Shire in demonstrating to regulatory authorities that, contrary to Mr Nyoni’s assertions, the latter did not run a “perfect pharmacy”. The primary judge found:

Mr Friend’s evidence that the first time he had seen the letter was when it was shown to him in the witness box, is highly implausible, and I reject that evidence. It is inconceivable that Mr Friend who had since January 2010, been engaged in a continuing campaign to cause the regulatory authorities to take disciplinary action against Mr Nyoni would not have examined the letter before it was dispatched from the Shire offices so as to ensure that Mr van Bronswijk’s request for confirmation of the disconnection of the pharmacy’s electricity, had been complied with. (emphasis added)

50    His Honour also found:

I find that Mr Friend’s intention in sending the email to Mr Bateman and Mr van Bronswijk advising of the impending disconnection of the electricity to the pharmacy, and in procuring the production and dispatch to Mr van Bronswijk of the letter of confirmation signed by Mr Mitchell, was to persuade the Pharmaceutical Council to consider taking disciplinary action against Mr Nyoni. The same is true in relation to the dispatch of the letter of confirmation to the Health Department. This action was part of a continuing campaign by Mr Friend and the Shire to persuade the various bodies which regulated the practice of a pharmacist, either to withhold benefits from, or impose sanctions against, Mr Nyoni so that Mr Nyoni would cease operating the Kellerberrin pharmacy and would be replaced by another pharmacist. That this was Mr Friend’s and the Shire Council’s objective from, at the latest, early January 2010, is obvious from the activities engaged in by Mr Friend and the Shire which are described in [90] to [137] above. The closing submissions of the second, third and fourth respondents, correctly acknowledge this to be the case. (emphasis added)

51    The primary judge found that on 14 October 2010, Mr Mitchell trespassed on the pharmacy premises and was liable in damages because he had no lawful authority to enter them. As noted earlier, his Honour assessed that Mr Mitchell should pay $12,000 in damages, which included $4,000 in aggravated damages to compensate for the affront to Mrs Nyoni, and thereby to her husband’s right to enjoy exclusive possession, in the way that Mr Mitchell carried out that trespass. He found that Mr Mitchell acted in a manner that was high-handed and disrespectful.

52    However, his Honour found that Mr Mitchell’s trespass had not involved, or been authorised or directed by, Mr Friend, even though Mr Mitchell had informed Mr Friend beforehand of what he proposed to do. He also found that Mr McDonnell had nothing to do with the disconnection of power to the pharmacy on 14 October 2010. Accordingly, the primary judge dismissed Mr Nyoni’s claims that Mr Friend and Mr McDonnell were joint tortfeasors on that occasion.

The 2010 trespass claim – Mr Nyoni’s submissions

53    Mr Nyoni’s amended notice of appeal did not challenge the primary judge’s findings in relation to the March 2010 disconnection of the electricity supply. Mr Nyoni argued in relation to the 14 October 2010 disconnection that the primary judge failed “to see the obvious link between Peter Mitchell and the Shire. Nowhere in the decision is it ever suggested that Peter Mitchell disconnected power without Shire involvement”. Mr Nyoni submitted that his Honour erred in failing to find that Mr Friend and Mr McDonnell had authorised, procured or acted in concert with Mr Mitchell in his trespass on 14 October 2010 and that all three of them had contravened s 52 of the Trade Practices Act 1974 (Cth) in doing so.

54    Mr Nyoni argued that the primary judge had erred when he found that “Mr Friend’s conduct amounted to no more than advising third parties of Mr Mitchell’s intent to engage in a certain course of conduct”. He contended that his Honour misapplied Fish & Fish Ltd v Sea Shepherd UK [2015] AC 1229 in characterising Mr Friend’s conduct of sending the 14 October 2010 email as having no causative or contributory effect on Mr Mitchell’s conduct in entering the pharmacy for the purpose of disconnecting the electricity. Mr Nyoni argued that Mr Friend, Mr McDonnell and Mr Mitchell had a common design because they were all complicit in wanting Mr Mitchell to do the acts that constituted the tort of trespass. Mr Nyoni submitted that this inference, of common design, should be drawn because Mr Mitchell did not go to other businesses or premises in Kellerberrin, other than the Shire offices, to seek assistance in relation to the disconnection of power to the pharmacy.

The 2010 trespass – consideration

55    The primary judge found that Mr Varney, whose evidence his Honour accepted generally as satisfactory, had induced the mistaken belief in Mr Mitchell’s mind that he was authorised to enter the pharmacy on 14 October 2010 to disconnect the electricity. His Honour also, correctly, found that it was no defence to the claim in trespass that Mr Mitchell acted as he did under that mistaken belief.

56    His Honour found that by the time Mr Mitchell informed Mr Friend of the instructions he had received from Mr Varney, Mr Mitchell was already intent on carrying out the disconnection of power to the pharmacy on the basis of Mr Varney’s instructions. Accordingly, we can see no error in his Honour’s conclusion that Mr Friend’s conduct in passing on to others the information that Mr Mitchell was going to disconnect the electricity supply to the pharmacy was not sufficient to establish that Mr Friend authorised or directed Mr Mitchell to commit his act of trespass.

57    No doubt Mr Friend was pleased to receive what he regarded as an important and useful piece of news from Mr Mitchell about his proposed course of action. That course of action, if carried out, would further Mr Friend’s and the Shire’s admitted objective that, from at latest early January 2010, they could use the disconnection to persuade one or more regulators to act so that Mr Nyoni would cease operating the pharmacy. But the mere fact that Mr Mitchell had been instructed by Mr Varney to disconnect the pharmacy and was proceeding to carry out his instructions, however much it suited Mr Friend and the Shire, could not make the latter joint actors in what Mr Mitchell did at the pharmacy. Mr Friend and the Shire, while approving of what Mr Mitchell was going to do and then did, did not themselves play any causative role in the giving of the incorrect instructions to Mr Mitchell or in his acts of entry onto the pharmacy premises and disconnection of electricity on 14 October 2010. There was no evidence before his Honour that, prior to the disconnection, Mr Friend or the Shire had done anything to assist Mr Mitchell in his act of trespass on 14 October 2010, let alone anything that made either of Mr Friend or the Shire a joint tortfeasor in that act.

58    The 14 October 2010 email that Mr Friend sent, showed that he was hoping that Mr Mitchell would act as he said he had been instructed. And Mr Friend’s conduct in procuring and despatching Mr Mitchell’s letter of 14 October 2010 showed that he, and the Shire, wanted to use the disconnection of power to the pharmacy to bring about a swift regulatory response that Mr Friend hoped would harm Mr Nyoni. But the mere fact that Mr Mitchell’s communication of his proposed conduct of disconnecting the power coincided with an objective, that Mr Mitchell shared, of causing adverse regulatory action to be taken against Mr Nyoni, is insufficient to establish that Mr Friend or the Shire had any causative role in Mr Mitchell entering the pharmacy and carrying out the instructions that Mr Varney had given him.

59    Nor was the conduct of Mr Friend in sending his 14 October 2010 email engaging in trade or commerce within the meaning of s 52 of the Trade Practices Act. As Mason CJ, Deane, Dawson and Gaudron JJ said in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 604:

the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. (emphasis added)

60    Mr Friend’s conduct in communicating with the two regulators was not an activity or transaction that of its nature bore a trading or commercial character. His communications on 14 and 15 October 2010 with the two regulators were in the nature of a complaint or the provision of information by him and the Shire in furtherance of the campaign that his Honour found (see [50]) to persuade them to take regulatory action against Mr Nyoni.

61    It follows that the grounds of appeal on the 2010 trespass claim fail. But that is not the only cause of action on which Mr Nyoni relied arising out of the 2010 trespass.

The misfeasance claim – background

62    Mr Nyoni claimed also that the Shire, Mr Friend and Mr McDonnell engaged in the tort of misfeasance in public office in relation to Mr Mitchell’s disconnection of the electricity supply to the pharmacy on 14 October 2010. Mr Nyoni contended that:

    each of Mr Friend and Mr McDonnell, as a public officer:

(1)    authorised or procured, or acted in concert with, Mr Mitchell to engage in the acts constituting his trespass at the pharmacy premises on 14 October 2010;

(2)    directly or indirectly, by assisting Mr Mitchell to produce and despatch his letter of 14 October 2010, communicated misleading information to each of the Department and the Pharmaceutical Council, namely that the electricity supply would be, or had been, disconnected without informing the recipients that the disconnection was not attributable to any default by Mr Nyoni;

(3)    engaged in the conduct in (1) and (2) with the intention of harming Mr Nyoni;

    conduct of each of Mr Friend and Mr McDonnell caused the Department and Pharmaceutical Council to be misled into believing that the disconnection had occurred by reason of the fault of Mr Nyoni;

    Mr Nyoni’s reputation had been harmed by reason of that conduct of Mr Friend and Mr McDonnell.

63    The primary judge rejected Mr Nyoni’s claim that each of Mr Friend and Mr McDonnell authorised, procured or acted in concert with Mr Mitchell in the October 2010 trespass. Because we have upheld his Honour’s rejection of that allegation, it is not necessary to consider this aspect further on the misfeasance claim.

64    The primary judge rejected Mr Nyoni’s case that Mr McDonnell had any involvement in Mr Friend’s acts and conduct on 14 October 2010 in producing and despatching the email advising Mr Bateman (of the Department) and Mr van Bronswijk (of the Pharmaceutical Council) of the disconnection of the electrical supply. Accordingly, his Honour dismissed the misfeasance claim against Mr McDonnell.

65    His Honour referred to his earlier findings that, on 14 October 2010, Mr Friend had:

    procured the production and despatch of Mr Mitchell’s letter;

    sent the email to Mr Bateman and Mr van Bronswijk;

    intended, when participating in those communications, to harm Mr Nyoni by causing the two regulatory authorities to take action against him as a consequence of the disconnection of the electricity supply.

66    However, the primary judge reasoned that Mr Friend had not acted, when he engaged in that conduct, in exercise of his powers attaching to a public office. His Honour followed what Lord Bridge of Harwich had held in Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 at 1240-1241 and Wilcox, Miles and RD Nicholson JJ had held in Emanuele v Hedley (1998) 179 FCR 290 at 300 [34] to conclude that it was an essential element of Mr Nyoni’s cause of action that, in acting as he did, Mr Friend exercised a power attaching to his public office. Therefore, the primary judge dismissed the misfeasance claim.

The misfeasance claim –the parties’ submissions

67    Mr Nyoni argued that Mr Friend and Mr McDonnell had, and knew that they had, acted illegally and with the intention of harming him in sending the 14 October 2010 email and participating in the preparation and despatch of Mr Mitchell’s letter of 14 October 2010. He argued that all of the respondents (including the Shire) “colluded and knew that Mr Nyoni would be reprimanded by the Pharmaceutical Council … and the Health Department”. However, Mr Nyoni did not identify any evidence to show that the primary judge had erred in concluding that there was no basis to make a finding against Mr McDonnell and we need not consider this claim further. Mr Nyoni also argued that Mr Friend and Mr McDonnell had contravened s 52 of the Trade Practices Act in the same way.

68    Mr Friend and Mr McDonnell argued that his Honour was correct in dismissing the misfeasance claim against Mr Friend because Mr Nyoni had not identified a relevant power in Mr Friend’s public office that Mr Friend had or had not exercised on which the claim depended. The Shire expressly adopted the submissions of Mr Friend and Mr McDonnell on this ground of appeal. In doing so, it recognised that Mr Nyoni was, as he had at the trial, claiming that the Shire had acted to harm him.

The misfeasance claim – consideration

69    The Local Government Act 1995 (WA) provided that a local government, such as the Shire, had to administer its local laws and “may do all other things that are necessary or convenient to be done for, or in connection with, performing its functions under this Act” (s 3.18(1)), and “In performing its executive functions, a local government may provide services and facilities” (s 3.18(2)). Part 5 of the Act dealt with administration, including the publication of the minutes of a meeting of a local government council, such as the Shire Council, to which issue we will refer later in these reasons in relation to the minutes claim. Importantly, s 5.36(1)(a) required a local government to employ a chief executive officer, defined as CEO in s 1.4, and the CEO had to be employed on a contract (s 5.36(2)). The CEO’s functions, set out in s 5.41, included ensuring that advice and information is available to the council so that informed decisions can be made, causing council decisions to be implemented and managing the day to day operations of the local government (here the Shire) (s 5.41(b), (c) and (d)).

70    We have summarised at [43]-[52] above the findings of the primary judge about Mr Friend’s email that he sent at 3:31pm on 14 October 2010 to Messrs Bateman and van Bronswijk, and copied to Mr McDonnell, six councillors and three other individuals including Mr Griffiths.

71    Relevantly, Mr Friend sent that email using the Shire’s email account and it bore his name, official position and details as chief executive officer of the Shire under the subject heading “Pharmacy Power”. Mr Friend said that he included all the councillors of the Shire Council in his email because:

I quite often do that in relation to matters of operation, particular matters that the community will then badger them on. So my council has never liked being blind-sided by – hot issues … So it was important that they get copied in, same with my senior officers. (emphasis added)

72    Shortly afterwards, Mr Friend assisted Mr Mitchell in preparing and sending his letter of 14 October 2010 (set out at [46] above) in which he recorded that power had been disconnected to the residence of Mr and Mrs Nyoni at 3:01pm and to the pharmacy at 3:32pm.

73    Mr Friend said in his witness statement, that he verified at the trial, that since becoming chief executive officer in late April 2009, he had received regular complaints in relation to how the pharmacy had been, and was being, run. He said that as “the Shire’s CEO I was concerned that the pharmacy wasn’t providing a good service to the community. I viewed the pharmacy as an essential service to the people of Kellerberrin”. In cross-examination, he said that “from … a local government perspective, we deal with … a great number of complaints, some of which can be dealt with at a local government level and some of which … we need to refer to authorities” that had some form of control over the issue the subject of the relevant complaint.

74    It is necessary to decide whether the primary judge was correct to hold that Mr Friend did not exercise the powers attaching to his public office of the Shire’s chief executive officer when he sent his email of 14 October 2010 and assisted Mr Mitchell to send his letter of that date.

75    Mr Friend acted maliciously, on the primary judge’s findings, in sending his 14 October 2010 email and causing Mr Mitchell’s letter to be produced and sent to the two regulators. The harm that Mr Friend sought to bring about, using his position as chief executive officer of the Shire in an official email from him in that office, was to give the Department and the Pharmaceutical Council a basis to act against Mr Nyoni to undermine his ability to act as a professional, licensed and qualified pharmacist at the pharmacy.

76    Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ in Northern Territory v Mengel (1995) 185 CLR 307 at 345, in a passage applied by Gleeson CJ, Gaudron, Kirby and Hayne JJ in Sanders v Snell (1998) 196 CLR 329 at 346-347 [42], held that misfeasance in public office:

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. (emphasis added)

77    In Mengel 185 CLR at 335-336 Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ, explained that the officers concerned had acted outside the scope of their authority when they informed the Mengels that their cattle were subject to movement restrictions. However, the officers did not have actual knowledge that they lacked authority and the Mengels contended in the High Court that constructive knowledge sufficed to impose liability on the officers for misfeasance in public office. Thus, the High Court had to determine the requisite state of mind for that intentional tort.

78    The joint judgment held that the tort was not simply constituted by an act of a public officer which, first, he, she or it knows is beyond power and, secondly, results in damage. Rather, their Honours held that the tort should be confined in the same way as those torts that imposed liability on private individuals for the intentional infliction of harm, including acts that, in the ordinary course, are calculated to cause harm (Mengel 185 CLR at 347). They instanced what Wright J had held in Wilkinson v Downton [1897] 2 QB 57 where the defendant falsely told the plaintiff that her husband had been seriously injured in an accident, intending that she believe that his statement was true. The plaintiff suffered serious and permanent physical consequences and mental upset for which the jury awarded her £100 damages.  Wright J identified the principle that, if the defendant wilfully did an act that was not justifiable and was calculated to cause physical harm to the plaintiff and that in fact caused such harm, the law would impute that the defendant intended to cause harm of the kind suffered (Wilkinson [1897] 2 QB at 58-59).

79    As Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ recognised, Wright J’s imputed intention was different from a finding that the defendant recklessly did the act that brought about the harm suffered. Their Honours did not consider it necessary to decide whether a defendant’s recklessness could suffice to constitute the tort (Mengel 185 CLR at 347), but they held that an officer could not be liable for misfeasance in public office on the basis that the officer only had constructive knowledge of his or her lack of authority (at 348).

80    As Gummow, Hayne, Heydon and Crennan JJ noted in Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 at 153-154 [11], 164 [55], after the High Court had accepted in Sanders 196 CLR at 346-347 [42] that the tort of misfeasance in public office included where the public officer acted knowingly in excess of his or her power, the House of Lords indicated in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 192F-G per Lord Steyn (Lords Hope of Craighead and Hobhouse of Woodborough agreeing at 197C-D and at 231F-H), and at 228A-D per Lord Hutton (Lord Hobhouse of Woodborough agreeing at 231F-H), that recklessness may also be a sufficient state of mind to found the tort. Their Honours then referred to “[t]he affinity between tort law and public law” that “reflects the precept that in a legal system such as that maintained by the Constitution executive or administrative power is not to be exercised for ulterior or improper purposes [cf Three Rivers [2003] 2 AC at 190H-191A]” (Futuris 237 CLR at 153-154 [11]).

81    It is of the essence of misfeasance in public office that the officer either maliciously (with the intention of injuring the plaintiff) uses his, her or its power or, alternatively, knowingly acts in excess of that power. That can occur because the officer either had no actual power to exercise or acted on the basis of an existing power but beyond its scope. One way of acting beyond the scope of a public power is for the official to use the power maliciously because he or she intends to cause harm: Mengel 185 CLR at 345 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ; see too at 356-357 per Brennan J. As the joint judgment explained in Mengel 185 CLR at 335, the officials in that case had no power at all to do the acts complained of but, because they lacked any knowledge of that want of power, and had no malicious intention, they did not commit the tort (see too Farrington v Thomson and Bridgland [1959] VR 286 at 293-294 per Smith J).

82    Thus, in Mengel 185 CLR at 357 (and see too at 370-371 per Deane J), Brennan J explained that malice and actual knowledge (including, in his view, also reckless indifference) were alternative states of mind. He said that either state of mind established “the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office”.

83    In Sanders 196 CLR at 344 [37] Gleeson CJ, Gaudron, Kirby and Hayne JJ said that misfeasance in public office “is concerned with misuse of public power”. The circumstances in which public officers can misuse their powers cannot be confined to closed categories. That is because experience of human affairs suggests that it is unwise to attempt to categorise possible abuses. Rather, the principle identified by their Honours encapsulates the ambit of operation of the tort. The concern of the law in this area is to ensure that a person injured by an intentional or knowing misuse of public power will have an effective means of redress.

84    In Dunlop v Woollahra Municipal Council [1982] AC 158 at 172E-G Lord Diplock, giving the advice of the Privy Council, described the tort as “the well-established tort of misfeasance by a public officer in the discharge of his public duties” (see too Mengel 185 CLR at 345 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ, at 356-357 per Brennan J and at 370 per Deane J; Watkins v Secretary of State for the Home Department [2006] 2 AC 395 at 404 [11] per Lord Bingham of Cornhill). He said that Yeldham J, in the Supreme Court of New South Wales, had “rightly accepted that the council as a statutory corporation exercising local government functions was a public officer for the purposes of this tort”.

85    For the purposes of these proceedings, Mr Friend’s malicious intention, as found by his Honour, should be imputed to his employer, the Shire. That is because, first, Mr Friend was acting consistently with the Shire’s campaign to harm Mr Nyoni and, secondly, in pursuing a complaint against Mr Nyoni he was acting as the Shire, not merely as its representative. His was the mind of the Shire for that purpose, so that he was personally liable and, because he was “the hands and brains” of the Shire, the Shire became directly (and not vicariously) liable for any misfeasance in public office by reason of the same acts of Mr Friend on 14 October 2010: Hamilton v Whitehead (1988) 166 CLR 121 at 127-129 per Mason CJ, Wilson and Toohey JJ.

86    The observations of Wilcox, Miles and RD Nicholson JJ in Emanuele 179 FCR at 300 [34] concerned a senior public official who allegedly falsely reported to his superiors the substance of a conversation that suggested the commission of a crime. Their Honours observed that whether the official’s report were true or false, his compilation and delivery of it “were not actions done in the exercise of powers attaching to a public office. They were simply the actions of an employee reporting an alleged event to superior officers”. In other words, their Honours found that the act complained of was not the exercise or purported exercise by the official of a power or authority of his public office. The mere making of a report to a superior involved no exercise of power or authority. Likewise, in Calveley [1989] AC at 1240C-F, Lord Bridge reasoned that a subordinate making an allegedly inaccurate report to the deputy chief constable, that resulted in the latter suspending the plaintiff police officer from duty, was not an exercise or purported exercise of a power or authority by the subordinate capable of constituting the tort of misfeasance in public office. In contrast, his Lordship said that, had the deputy chief constable acted maliciously when he suspended the plaintiff, that “would certainly be capable of constituting the tort of misfeasance in public office”.

87    In his article, Misfeasance in Public Office: Some Unfinished Business (2016) 132 LQR 427, Emeritus Professor Mark Aronson helpfully discussed aspects of the tort. He contended that spite or an intention to harm are not sufficient if the officer’s action complained of is in fact lawful, relying on the following statement by Harper J in Grimwade v Victoria (1997) 90 A Crim R 526 at 566 (see 132 LQR at 441):

Malice of itself is insufficient unless the exercise of the power is only valid if done without malice: a parking officer may be as malicious as he likes in giving a parking ticket to his worst enemy whose vehicle is illegally parked. And the fact that the officer intends to cause harm (by fixing the enemy with an obligation to pay the fine) is wholly beside the point. (emphasis added)

88    However, his Honour’s example was, with respect, flawed. That is because it overlooked that the causative role of the officer’s intention, in his act of giving the parking ticket, would be to injure the “enemy” as opposed to carrying out his lawful duties, were the officer not acting maliciously.

89    Six years after Harper J’s decision, Iacobucci J, giving the judgment of the Supreme Court of Canada (McLachlin CJ, Gonthier, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ) in Odhavji Estate v Woodhouse [2003] 3 SCR 263 at 280-282 [21]-[23], explained that if the public officer acts maliciously, he, she or it does not exercise the power for the purpose for which it exists.

90    Iacobucci J said that the authorities in Australia, New Zealand and the United Kingdom (relevantly Mengel 185 CLR 307, Garrett v Attorney-General [1997] 2 NZLR 332 and Three Rivers [2003] 2 AC 1) had not limited the tort of misfeasance in public office to the unlawful exercise of a statutory or prerogative power actually held ([2003] 3 SCR at 279-281 [19]-[22]). He identified the essential ingredients of the tort, based on Three Rivers [2003] 2 AC 1, as falling into two categories. His Category A involved a public officer whose conduct was specifically intended to injure a person or class of persons, while his Category B involved a public officer who acted with knowledge both that he, she or it had no power to do the act complained of and that act was likely to injure the plaintiff ([2003] 3 SCR at 281 [21]-[22]). Iacobucci J said that the two categories represented two different ways in which the officer could commit the tort, the common elements of which were ([2003] 3 SCR at 281-282 [23]):

First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. What distinguishes one form of misfeasance in a public office from the other is the manner in which the plaintiff proves each ingredient of the tort. In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff. (emphasis added)

91    Thus, in most cases, Harper J’s parking officer’s personal animus against his “enemy” will be merely coincidental to his everyday function of giving parking tickets. However, if the officer used his power for the dominant purpose of injuring the “enemy”, then that would be an improper use of the power.

92    Iacobucci J’s reasoning is consistent with the alternative characterisations of the mental element in Mengel 185 CLR at 345, with the statement of Gleeson CJ, Gaudron, Kirby and Hayne JJ in Sanders 196 CLR at 344 [37] that misfeasance in public office “is concerned with misuse of public power”, and with Lord Steyn’s identification of the rationale for the tort as “that in a legal system based on the rule of law executive or administrative power ‘may be exercised only for the public good’ and not for ulterior or improper purposes” (Three Rivers [2003] 2 AC at 190H (approving what Nourse LJ had held in Jones v Swansea City Council [1990] 1 WLR 54 at 85F)). Lord Steyn’s view reflects what Gummow, Hayne, Heydon and Crennan JJ had held in Futuris 237 CLR at 153-154 [11].

93    Lord Steyn recognised that there are two distinct ways in which the tort of misfeasance in public office may be committed. First, targeted malice, namely where the public officer engages in conduct that is specifically intended to injure a person or persons. In a case of targeted malice there is bad faith in the sense that the exercise of public power is done for an improper or ulterior motive. Secondly, the public officer acts knowing that there is no power to do the act complained of and that that act will probably injure the plaintiff (or applicant). In such a case, the public officer acts in bad faith because the officer does not have an honest belief that the act complained of is lawful: Three Rivers [2003] 2 AC at 191E-F.

94    Iacobucci J’s Category A is what Lord Steyn called “targeted malice”: see too Commonwealth v Fernando (2012) 200 FCR 1 at 23-24 [109]-[111] per Gray, Rares and Tracey JJ; Sanders v Snell (No 2) (2003) 130 FCR 149 at 175-176 [98]-[100], 177 [106], 178 [108] per Black CJ, French and von Doussa JJ. In Sanders (No 2) 130 FCR at 178 [108], the Full Court said that:

The “targeted malice” that is central to the first form of the tort requires in the present case a finding of an intention to terminate the plaintiff’s employment as a means of inflicting harm upon him. The intention to inflict harm must be “the actuating motive”. (emphasis in original)

95    They explained that, since the essence of the tort is the “dishonest abuse of power”, the mere intention to harm will not be sufficient if harm of that nature would necessarily result from the proper exercise of that power.

96    Public power exists to be exercised for public, not private, purposes: Futuris 237 CLR at 153-154 [11]. A public officer can use, with a proper or improper purpose, a power to make a grant to persons of public money, a licence or authority. The improper purpose, such as to do a favour for a friend, to give a benefit to a relative or to give the quid pro quo for a bribe, is an abuse of the power even though that or any other officer could have decided to do the same act for lawful and proper purposes. Clearly enough, it will be a very rare case in which an officer, such as Harper J’s parking officer, will be proven to have acted for an improper purpose in giving a ticket to a person who both illegally parked a vehicle and coincidentally is the officer’s enemy. But, the difficulty of imagining a particular case should not obscure the commonplace experience that persons entrusted with powers can and do misuse them.

97    The elements of the tort of misfeasance in public office have been crafted carefully to ensure that they do not encompass the negligent or unintentional acts or omissions of a public official. The tort requires, first, a misuse of an office or power, secondly, the intentional element that the officer did so either with the intention of harming a person or class of persons or knowing that he, she or it was acting in excess of his, her or its power, and, thirdly, that the plaintiff (or applicant) suffered special damage or, to use Lord Bingham’s more modern characterisation, “material damage” such as financial loss, physical or mental injury, including recognised psychiatric injury (but not merely distress, injured feelings, indignation or annoyance): see Watkins [2006] 2 AC at 403 [7], 410 [27].

98    Because misfeasance in public office is an action on the case, it is a necessary element of the tort that the plaintiff (or applicant) suffer actual or “special” or “material” damage: Ratcliffe v Evans [1892] 2 QB 524 at 527-528 per Bowen LJ for himself, Lord Esher MR and Fry LJ (see too Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 79 [56] per Gummow and Hayne JJ). He said where “damage is the gist of the action” it was necessary to prove “actual temporal loss with certainty and precision” ([1892] 2 QB at 532), however this was “subject to the qualification of good sense and of justice” (at 531). Bowen LJ explained that in an action on the case for injurious falsehood:

The nature and circumstances of the publication of the falsehood may accordingly require the admission of evidence of general loss of business as the natural and direct result produced, and perhaps intended to be produced.

99    At common law, ordinarily, slander or defamation orally or by spoken words was not actionable per se without an allegation and proof of special damage. However, there were exceptions to that rule. In some cases, slander was actionable without special damage, namely, where the defamatory publication related to the plaintiff’s business or profession or office of profit, “the mere imputation of want of ability to discharge the duties of that office is sufficient to support an action. It is not necessary that there should be imputation [sic] of immoral or disgraceful conduct”: Alexander v Jenkins [1892] 1 QB 797 at 800 per Lord Herschell, with whom Lindley and Kay LJJ agreed. Lord Herschell explained that (at 800-801):

It must be either something said of him in his office or business which may damage him in that office or business, or it must relate to some quality which would shew that he is a man who, by reason of his want of ability or honesty, is unfit to hold the office. So much with regard to offices of profit; the reason being that in all those cases the Court will presume, or perhaps I should rather say the law presumes, such a probability of pecuniary loss from such imputation, in that office, or employment, or profession, that it will not require special damage to be shewn. It may be said to be an arbitrary rule. Be it so; (emphasis added)

100    In Watkins [2006] 2 AC 395, the House of Lords rejected a claim by a prisoner that prison officers and the Home Secretary had committed misfeasance in public office when three prison officers maliciously opened letters to the prisoner from his lawyers. That was because their Lordships found that the prisoner could not establish that he had suffered “material damage”, however unlawfully the three officers had acted.

101    There is a distinction between that situation and the present case, where Mr Friend targeted his malice to have the two regulators take steps to cause Mr Nyoni to cease operating his pharmacy by raising matters with them that suggested that Mr Nyoni was unfit to properly conduct, or incapable of properly conducting, his profession or the business of a pharmacist. The making of such an allegation by a public officer or body, such as Mr Friend or the Shire, to another government agency or authority with regulatory powers over a person in Mr Nyoni’s position should be presumed (as it would in cases of slander) to cause sufficient material or actual damage to support the action of misfeasance in public office.

102    In substance, Mr Friend intended, maliciously, as his Honour found, to cause both economic and reputational harm to Mr Nyoni. There is no reason why the law should ignore the reality that a professional person must suffer some real, material harm, when a public officer makes a complaint about the person to a regulator of his or her profession.

103    The next question is whether in sending his email of 14 October 2010, and causing Mr Mitchell’s letter to be sent, to the Department and the Pharmaceutical Council, Mr Friend acted in exercise or purported exercise of a power of his public office. It is inherent in the performance of the most senior executive office of a governmental institution, such as a Department of State or a local government council, that the office-holder must make representations and communications on behalf, or as the voice, of that institution to others, including other organs of government responsible for exercising functions or powers that affect the office-holder’s employer.

104    Here, the provision of pharmacy services in Kellerberrin was a matter of concern to the Shire, as the local governmental body responsible for the provision of certain essential and other services to its constituents and others in Kellerberrin. As his Honour found, from at latest January 2010, Mr Friend and his employer, the Shire, had engaged in a continuing campaign to persuade regulators of pharmacists to act in exercise of their powers so as to bring about the result that Mr Nyoni would cease operating the Kellerberrin pharmacy: see [50] above.

105    Mr Friend acted, in sending his email of 14 October 2010 and causing Mr Mitchell’s letter to be sent, with the intention that these would cause other public authorities to act on their powers to suspend or prevent Mr Nyoni from continuing to practice as a pharmacist or to dispense essential medicines. That was, as the primary judge found, Mr Friend’s intention. It is also safe to infer that Mr Friend advisedly employed the means that he believed would best give effect to the fulfilment of his intention.

106    Mr Friend’s argument that, as chief executive officer, he “had no power to direct either of the institutions those officers [Mr Bateman and Mr van Bronswijk] represented to take any particular action” must be rejected. This was not a case where Mr Friend had any power to direct those other institutions. But he did have power, in his capacity as the Shire’s chief executive officer, to make and pursue complaints with, or make representations to, other governmental authorities about matters that directly affected, or advanced the interests of, the Shire as another governmental institution.

107    Mr Friend was using the authority of the Shire and his own office to seek to cause two governmental institutions to send officers to Kellerberrin the next day with a view to them taking action adverse to Mr Nyoni because of the disconnection of the electricity supply to the pharmacy. Hence, Mr Friend’s question at the conclusion of the 14 October 2010 email, “I assume I will see you both tomorrow?” In effect, Mr Friend was making a complaint, using his office, to two regulatory bodies that a pharmacy in the Shire, that was an important, if not essential, service in Kellerberrin, could not operate properly without electricity. As he acknowledged in his evidence to the primary judge, Mr Friend considered that the pharmacy was in the class of “hot issues” for the elected councillors, hence he copied all of them into his 14 October 2010 email. Moreover, as the primary judge found, Mr Friend also procured the production and despatch to the two regulators of Mr Mitchell’s letter of 14 October 2010, that confirmed that the power supply had been disconnected, with the intention of harming Mr Nyoni.

108    Where a very senior public official uses his or her own office, with the intention to cause harm, to make a complaint about another person to another governmental or other institution or body with power to adversely affect the person complained of, is it correct to say that the official, in doing so, is using a “power” of his or her office? Appointment to a public office clothes an official with authority to exercise the powers and functions of the office on behalf of or for the appointor. Mr Friend explained in his evidence that an aspect of his, and the Shire’s, office was to deal with “a great number of complaints … some of which obviously we need to refer to authorities”.

109    The tort of misfeasance in public office involves a misuse of the power of the office. The officer must either intend that misuse to cause harm (whether or not the exercise of the power is within its scope) or know that he or she is acting in excess of his or her power: Mengel 185 CLR at 345. That is, depending on the officer’s state of mind in exercising the power, the misuse can be one that would be within the power (i.e. a use that, if coupled with an intention to use it that was not to cause harm, would be lawful) or in excess of the power (i.e. a use for which, in essence, there is no power because the officer knows that the act is beyond – in excess of – the power). Nonetheless, it is necessary to establish that the alleged misfeasance is connected to a power or function that the officer has by virtue, or as an incident, of his or her public office.

110    The primary judge followed what Lord Bridge said in Calveley [1989] AC at 1240-1241, namely that if a police officer investigating suspected criminal or disciplinary activity maliciously (i.e. intending to cause harm to the suspect) makes a false report to a disciplinary officer which is defamatory of the suspect, the suspect has a cause of action in defamation against the officer. But, his Lordship said:

… the report is defamation not misfeasance in public office, since the mere making of a report is not a relevant exercise of power or authority by the investigating officer.

111    His Honour reasoned that Mr Friend’s actions in sending the 14 October 2010 email and assisting in the production and despatch of Mr Mitchell’s letter were not done in the exercise of powers attaching to a public office, albeit that these were not communications to a superior officer as in Calveley [1989] AC 1228 or Emanuele 179 FCR at 300 [34].

112    The principle in cases such as Calveley [1989] AC 1228 and Emanuele 179 FCR 290 appears to be that the action of making or furnishing internal communications or reports by employees to superiors within a governmental institution may not amount to an act done in the exercise of the author’s public office. That is, such an act, whatever may be its ultimate influence or impact on those who are the superiors of the actor, does not have an immediate or direct consequence on the person who is, or in due course comes to be, injured by it. In such a case, the injury arises directly from a subsequent act that, while it may have been caused by the earlier malicious report, is distinct from it. It is likely that the cases on which his Honour relied had sought to distinguish intermediate actions in a chain of causation from the effective and immediate cause of injury, being the ultimate exercise of the public power such as, for example, the arrest or charging of the suspect by, or under the orders of, an officer other than the malicious author of the report.

113    Here, the injury of which Mr Nyoni complained was Mr Friend’s acts, as chief executive officer, that, on 14 October 2010, initiated investigative and disciplinary actions by other authorities in relation to Mr Nyoni. Mr Friend exercised the power to make an official complaint, on behalf of the Shire, against Mr Nyoni to the Department and the Pharmaceutical Council. Mr Friend used a power of his office maliciously to make complaints to the two governmental authorities. His exercise of that power was complete when he set the investigation processes in motion against Mr Nyoni.

114    Mr Friend had no other relevant power to exercise, unlike the situation in the cases involving internal reports. He exercised the only power – the power to make an official complaint – that was relevantly available to him as chief executive officer of the Shire, deliberately to harm Mr Nyoni. He used his office, and its authority, to inform the two institutions about the disconnection of electricity to Mr Nyoni’s pharmacy and ensured that Mr Mitchell’s confirmatory letter was sent to them in order to harm Mr Nyoni by causing the institutions to take action against him. Each of the Pharmaceutical Council and the Department promptly wrote to Mr Nyoni on 15 and 19 October 2010, respectively, informing him that continuous supply of electricity to a pharmacy was essential and attributing to him the responsibility for the cessation of supply on 14 or 15 October 2010. Moreover, the Department’s letter warned Mr Nyoni that if another disconnection were to “occur under similar circumstances” it would consider suspending his licence for the pharmacy.

115    On his Honour’s findings, Mr Friend intended that his actions on 14 October 2010 would bring about, at least, such a result, namely that the two regulators would treat the disconnection of electricity to the pharmacy as a matter adverse to Mr Nyoni’s entitlement to continue to operate it. Importantly, as noted above, his Honour found that no one, including Mr Friend, had advised Mr van Bronswijk or the Department that Mr Nyoni was not at fault for the electricity being disconnected and that Mr van Bronswijk was left with the impression that Mr Nyoni had been at fault.

116    As a consequence, the two regulators maintained uncorrected on their records in relation to Mr Nyoni and the pharmacy, the false report, that Mr Friend had sent or caused Mr Mitchell to make, that Mr Nyoni was responsible for the disconnection of the pharmacy that would be used against him should there be a repetition. That result advanced the campaign against Mr Nyoni that Mr Friend and the Shire had been pursuing.

117    Mr Friend’s actions were not isolated or unexplained. He had been acting on the instructions and with the authority of the Shire for months, in expressing complaints about Mr Nyoni to the Department, as his 6 January 2010 letter to its Minister showed, and the Pharmaceutical Council.

118    In our opinion, based on the primary judge’s findings of fact, Mr Friend committed the tort of misfeasance in public office in acting as he did on 14 and 15 October 2010 by sending his email and assisting Mr Mitchell to produce and despatch his letter to convey that Mr Nyoni was at fault for the pharmacy’s disconnection. In so acting Mr Friend was also acting as the Shire so as to make it also liable for misfeasance in public office: Dunlop [1982] AC at 172F-G; Hamilton 166 CLR at 127-129. Their intention, of injuring Mr Nyoni in doing so, entailed that their exercise of a public power was done for an ulterior and an improper purpose and, so, was a misuse of their powers: Futuris 237 CLR at 153-154 [11]. It was targeted malice.

119    Given that the primary judge had the advantage of seeing and hearing the witnesses over a lengthy trial, we consider that we should remit the assessment of damages, including aggravated and or exemplary damages, to his Honour which he should be able to do without the need for further submissions.

The minutes claim – background

120    Mr Nyoni alleged that, in contravention of s 52 of the Trade Practices Act 1974 (Cth), the Shire had engaged in misleading or deceptive conduct in trade or commerce by publishing the minutes of the meeting of the Shire Council of 16 February 2010. He contended that the minutes conveyed eight representations (that the primary judge found were, in fact, conveyed), namely that:

(a)    Mr Nyoni provided unacceptable service to his customers and had done so for many years;

(b)    the community was dissatisfied with the service provided by Mr Nyoni;

(c)    complaints had been made on a regular basis to the Shire’s staff;

(d)    the pharmacy had irregular hours of opening;

(e)    the pharmacy was in a dirty state;

(f)    the pharmacy lacked stock;

(g)    the pharmacy lacked prescription drugs; and

(h)    the community was not receiving access to essential services because of Mr Nyoni.

121    Mr Nyoni claimed that each of the eight representations was false and that he had suffered loss and damage as a result of the publication of the minutes.

122    The primary judge found that Mr Nyoni’s claim failed at the threshold. That was because the publication of the minutes by the Shire on its website was not conduct in trade or commerce but rather was done pursuant to the statutory obligation under s 5.22 of the Local Government Act 1995 (WA) to keep minutes of all council meetings, and reg 13 of the Local Government (Administration) Regulations 1996 (WA) to make the minutes available to the public. His Honour also considered whether Mr Nyoni had proved that each of the eight representations was false. He found, after considering the evidence of numerous witnesses, that Mr Nyoni had not discharged his onus of proof to establish that any of the eight representations was false.

123    In addition, the primary judge found that Mr Nyoni had adduced no evidence as to the financial position of the pharmacy business as at 16 February 2010 or of any deterioration of that position consequent on the publication of the minutes. Accordingly, his Honour found that Mr Nyoni had not discharged his onus of proof to demonstrate that he had suffered any loss or damage by reason of the Shire’s allegedly misleading or deceptive conduct in publishing the minutes. Thus, the minutes claim failed.

The minutes claim – Mr Nyoni’s submissions

124    Mr Nyoni contended that the primary judge erred in holding that, first, the Shire’s publication of the minutes was not in trade or commerce, secondly, Mr Nyoni had not proved that the eight representations were false and, thirdly, Mr Nyoni had failed to prove any loss or damage by the allegedly misleading or deceptive conduct.

125    Mr Nyoni submitted that “[t]he leading authority on ‘in trade or commerce’ which has parallels with the current proceedings is Menhaden v Citibank NA (1984) 55 ALR 709” [1 FCR 542]. He argued that his Honour is bound to follow that case and Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 to find that the publication of the minutes on the internet was “in trade and commerce” and that nothing in Nelson 169 CLR 594 was to the contrary. He contended that this also followed because the Shire was a trading corporation. Mr Nyoni submitted that the provisions of the Local Government Act could not exclude the application of s 52 of the Trade Practices Act and that as a result, he argued, the publication of the minutes was in trade or commerce.

126    Next, Mr Nyoni argued that his Honour erred in his assessment of the various witnesses when he found that Mr Nyoni had not discharged his onus to prove that each of the eight representations was false. He submitted that the financial statements of the pharmacy business “were in many respects unreliable” because his accountant was being investigated on the basis of complaints that Mr Nyoni appears to have made against him. Mr Nyoni also submitted that the pharmacy’s performance declined from 2007 as a result of actions of the Shire and that “the real loss and damage” was caused by all the matters that he raised in the appeal “such as the conspiracy between Robert Bateman and the Shire”.

The minutes claim – consideration

127    Mr Nyoni’s grounds of appeal relating to the minutes must be rejected. The primary judge correctly held that the publication by the Shire of the minutes of the meeting of the Shire Council on 16 February 2010 was not conduct in trade or commerce. Accordingly, s 52 of the Trade Practices Act and its analogue, s 10 of the Fair Trading Act 1987 (WA), did not apply to that publication.

128    The Shire had a statutory duty to publish the minutes of a meeting of the Shire Council held under s 5.22 of the Local Government Act. Such meetings had to be open to the public, unless (which was not suggested to be the case here) the Council decided to close the meeting or part of it (s 5.23). That Act provided for the regulations to provide for the Council to give public notice of the date and agenda for Council meetings and the circumstances and time in which notice papers and agenda relating to any council meeting were to be made available for inspection by members of the public (s 5.25(1)(g) and (j)). Any person had a right to inspect any confirmed minutes of open council meetings, and any tabled notice papers and agenda relating to any council meeting (s 5.94(n), (p), 5.95(3), 5.96). The Local Government (Administration) Regulations 1996 (WA) provided authority for the publication of the minutes of the meeting of 16 February 2010 and their contents relating to Mr Nyoni and the pharmacy in regs 11 and 14.

129    The publication of the minutes of a meeting of a local government council is, like the publication of Hansard being a record of proceedings in a parliament, the communication of a record of the meeting of an elected statutory body of community representatives published for the purpose of making transparent and publicly available a record of that body’s official proceedings that had taken place in public.

130    The meeting of the Shire Council was not in trade or commerce. Rather, the meeting was governmental in character. The minutes recorded what transpired at the meeting. The Local Government Regulations required any notice papers and agenda relating to the meeting, that were tabled or produced at it, to be made available for inspection by the public. The portion of the minutes, the publication of which Mr Nyoni complained, was a verbatim reproduction of an agenda item that itself had to be published under regs 11 and 14, a publication that again is incapable of being characterised as “in trade or commerce”.

131    Neither publication of the minutes or the reproduced agenda item was made in trade or commerce: Nelson 169 CLR at 604. Here, the publication of the minutes was an integral aspect of the Local Government Act’s requirements for the Shire to do so as an aspect of the governmental role of the Shire Council. The publication had no trading or commercial character. The decision of Toohey J in Menhaden 1 FCR 542 does not assist Mr Nyoni’s argument. The only justice in Nelson 169 CLR 594 who referred to that decision was Toohey J himself in his concurring judgment (169 CLR at 611). Unlike the joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ, Toohey J propounded a test that conduct could not contravene s 52:

unless it is conduct of a character which misleads or deceives or is likely to mislead or deceive persons in their capacity as consumers of goods and services.

132    Toohey J’s approach was not that endorsed by the majority of the High Court. The primary judge correctly applied the test propounded by the majority in Nelson 169 CLR at 603-604. Nor was the decision in Gutnick 210 CLR 575 of any relevance to this issue. It did not concern the test to be applied in deciding whether or not conduct engaged in was “in trade or commerce”. Accordingly, because the publication of the minutes did not occur in trade or commerce, Mr Nyoni’s grounds of appeal concerning the publication of the minutes cannot succeed.

133    Moreover, none of Mr Nyoni’s arguments that challenged his Honour’s findings that he had not discharged his onus to prove the falsity of the eight representations or that he had suffered any loss or damage by their publication, identified any basis upon which an appellate court could interfere with those findings: Robinson Helicopter 331 ALR at 558-559 [43]. His Honour saw and heard many witnesses who gave evidence about the truth or falsity of the eight representations. Once the primary judge had not been satisfied that any of the eight representations was false, Mr Nyoni’s claim also had to fail.

134    Mr Nyoni’s submissions failed to establish any arguable error in the primary judge’s acceptance or rejection of evidence to support the findings that he made on the minutes claim. His Honour based those findings on his assessment of disputed evidence by witnesses for the reasons that he gave. His Honour’s reasons explained clearly why he found as he did. Those findings, including the finding that Mr Nyoni had not proved any falsity of any representation or any loss or damage caused by the publication of the minutes, were open on the evidence.

135    It follows that the minutes claim fails.

Conclusion

136    For the reasons we have given, the appeal must be allowed, in part, against his Honour’s dismissal of the proceedings against the Shire and Mr Friend and the orders for costs in its and his favour. The assessment of damages on the misfeasance claim and any question of costs of the proceedings below as between Mr Nyoni, the Shire and Mr Friend should be remitted to the primary judge; otherwise the appeal against Mr Peczka, Mr McDonnell and Mr Mitchell must be dismissed with costs. The Shire and Mr Friend should pay 50% of Mr Nyoni’s costs, if any, of the appeal in respect of the grounds of appeal against the Shire and Mr Friend.

Associate:

Dated:    13 April 2017

REASONS FOR JUDGMENT

DOWSETT J:

INTRODUCTION

137    As North and Rares JJ have outlined the facts of the case, I need not do so in detail. Although I otherwise agree with their Honours’ reasons, I disagree with the conclusion that the allegation of misfeasance in public office against Mr Friend has been proven. My reasons for that conclusion are substantially the same as those of the primary Judge. There are, however, a number of matters which I should address.

THE PLEADING

138    The pleading of Mr Nyoni’s case is in an unusual form. The claim seems to be identified in a document headed “Draft Statement of Issues” in which, under the heading “Misfeasance in Public Office” the following paragraphs appear:

16    Whether by the engaging in alleged acts in authorising and/or directing Mr Mitchell to disconnect the electricity supply of Mr Nyoni, Mr Friend and/or Mr McDonnell deliberately acted beyond power, with the intention of harming Mr Nyoni’s business.

17    Whether the Shire or Mr Friend or Mr McDonnell engaged in the conduct pleaded at paragraph 55 of the April statement of claim; and if so, whether the Shire is thereby liable for the conduct of Mr Friend or Mr McDonnell.

18    Whether Mr Nyoni suffered loss and damage by reason of their conduct, and if so the quantum of the loss. Whether aggravated and/or exemplary damages are payable.

139    The reference to para 55 of the “April statement of claim” is to an earlier statement of claim or draft statement of claim in which para 55 was as follows:

55.    Following the disconnection of electricity as pleaded in paragraph 50 above, the Shire, or alternatively, Mr Friend, and or Mr McDonnell:

55.1.    Immediately caused both the Pharmaceutical Council of Western Australia and the Western Australian Department of Health to be informed, by telephone, facsimile transmission, email transmission, or by letter posted that the Pharmacy had lost its electricity on 14 October 2010.

55.2.    Caused the Western Australian Department of Health to be informed that Western Power had requested the electricity to be disconnected , which was not true; and

55.3.    Did not inform the Pharmaceutical Council of Western Australia, nor the Western Australian Department of Health either, that the disconnection of the electricity was not the Applicant's fault (as was the case), nor that the Shire, Mr Friend and or Mr McDonnell had caused the electricity to be disconnected (as was the case).

140    Paragraph 50 relates to conduct which occurred on 15 March 2010 when the electricity supply to Mr Nyoni’s pharmacy was disconnected. However it is clear that at the trial, the claim of misfeasance in public office concerned the disconnection of such supply on 14 October 2010. See the reasons at [19] and [351] and ground 7 in the notice of appeal. In the notice of appeal the cause of action seems to have been conflated with a claim for misleading or deceptive conduct.

141    In any event, the relevant conduct for present purposes is set out in the primary Judge’s reasons at [357]-[359] as follows:

357    However, I have already found that on 14 October 2010, Mr Friend wrote and sent the email to Mr Bateman and Mr van Bronswijk advising them of the impending disconnection of the electricity to the pharmacy. I have also found that Mr Friend procured the production and dispatch of the letter signed by Mr Mitchell later on 14 October 2010.

358    I have also found that Mr Friend’s intention in communicating with these authorities was to harm Mr Nyoni by causing the authorities to take action against Mr Nyoni as a consequence of the disconnection of the electricity. (See, [314] above.)

359    The question, therefore, is whether this conduct by Mr Friend constitutes the tort of misfeasance in public office.

THE HISTORY

142    The evidence demonstrates that for some years prior to 14 October 2010, the Kellerberrin Shire Council (the “Shire Council”), and/or persons associated with it had been dissatisfied with the way in which Mr Nyoni was conducting his pharmacy, the only pharmacy in the relevant area. There had been attempts to remove him from practice in the area and/or to induce another pharmacist to set up business there. Both the Pharmacy Board and the State Health Department had been drawn into the campaign against Mr Nyoni. The Pharmacy Board was a statutory body, responsible for administering Western Australian legislation concerning the practice of pharmacy. For present purposes, the relevant officer of the Pharmacy Board was Mr van Bronswijk a “pharmacist field officer”. The Health Department’s involvement seems to have been primarily in connection with the statutory control of the distribution of poisons. A Mr Bateman was the officer of the Department who was relevantly involved for present purposes. Prior to 14 October 2010, the electricity supply to the pharmacy premises had been cut off for non-payment of a bill. That event was presumably the result of action by the electricity supplier. However it caused concerns about Mr Nyoni’s capacity to continue as a pharmacist in the area.

EVENTS ON 14-15 OCTOBER 2010

143    On 14 October 2010, Mr Mitchell was, as he understood it, instructed by a Mr Varney to disconnect the electricity supply to Mr Nyoni’s properties. Mr Mitchell was an electrical contractor. Mr Varney owned a company which provided services to the electricity supplier. Mr Mitchell understood that he had been directed to disconnect the electricity supply to both Mr Nyoni’s home and to the pharmacy. Before carrying out his instructions, Mr Mitchell spoke to Mr Friend, the chief executive officer of the Shire Council. It seems that Mr Friend had previously been involved in the campaign against Mr Nyoni. Mr Mitchell told him that he had been instructed to disconnect the electricity supply to the pharmacy. As a result, at 3.31pm Mr Friend sent the following email to Mr van Bronswijk and Mr Bateman:

Tim/Robert I have been advised by Peter Mitchell, the local electrician, that he is cutting the power at both the pharmacy and Nyoni residence on Bedford Street this afternoon. I assume I will see you both tomorrow?

144    His Honour observed at [288]-[290]:

288    Mr Friend said in evidence that the reason he contacted Mr van Bronswijk and Mr Bateman was that in April 2010, he and Mr Tucker had met with Mr van Bronswijk and Mr Bateman when they came to inspect the pharmacy and that they had told him at that meeting, that if there were any issues in relation to the pharmacy, they should be contacted immediately.

289    At 4:04 pm on 14 October, Mr van Bronswijk replied to Mr Friend in the following terms:

Please arrange to have the electrician confirm to me in writing on his letterhead (electronically or by facsimile) that he has carried out disconnection of the power supply to both premises once he has done so.

290    Mr van Bronswijk said, in cross-examination, that on receiving the email from Mr Friend advising him of the imminent disconnection of the electricity to Mr Nyoni’s pharmacy and house on 14 October 2010, that he sought confirmation of the disconnection for the purposes of pursuing disciplinary action against Mr Nyoni. I accept that evidence.

145    At about 3.00pm Mr Mitchell disconnected the electricity supply to Mr Nyoni’s home. He then went to the pharmacy. After a heated exchange with Mrs Nyoni, he disconnected the supply to the pharmacy. He then went to the Shire Council’s premises and again spoke to Mr Friend. At about that time, or perhaps a little later, he signed a letter which had been prepared by somebody else, probably somebody working for the Shire Council. It was sent from the Shire Council’s premises to Mr van Bronswijk. The letter read as follows:

To Whom It May Concern

Re disconnection of power to both sites owned by Chemist one being house and other being owner’s business.

Meter number for house is…disconnected at 3.01 pm on 14 October

Meter number for chemist shop is…disconnected at 3.32 pm on 14 October

Please note this is not the first time this has occurred on the same premises.

146    At [283] his Honour said:

Mr Mitchell said that he then drove home and once he was at home he telephoned Mr Varney to give him the meter numbers and the meter readings. Mr Mitchell said that he could not remember the exact time but he thought it was between 5:00 pm and 6:00 pm. Mr Mitchell said that he then reported to Mr Varney that he had disconnected the electricity to the pharmacy and Mr Nyoni’s house, and he gave Mr Varney the meter readings for both locations. Mr Mitchell said that Mr Varney then said words to the effect: “Oh did you do both?” and he said words to the effect: “Yes. That’s what you told me to do this morning.” According to Mr Mitchell, Mr Varney then said words to the effect: “Oh look sorry I have made a mistake. It was only his house that needed doing. Can you go and put the pharmacy back on?”

147    At [293]-[298] his Honour said:

293    The electricity to the pharmacy was reconnected by Mr Mitchell at around 9:45 am on 15 October 2010.

294    By email sent at 10:58 am on 15 October 2010, Mr Friend advised Mr van Bronswijk that the electricity to the pharmacy had been switched back on. Mr van Bronswijk gave evidence that neither Mr Friend nor anybody else had advised him that the electricity had been switched off through no fault of Mr Nyoni. I find this to be the fact.

295    Mr van Bronswijk emailed Mr Friend on 15 October 2010 saying:

Thanks for letting us know, we have taken legal advice on the matter and will be writing to Mr Nyoni today regarding this issue.

Given that the issue has been rectified, and the Council ceases to exist at 5.00 pm today, there is little else we can legitimately do at this point in time…

296    Mr van Bronswijk was left with the impression that Mr Nyoni was to blame for the disconnection of the electricity. On 15 October 2010, the registrar of the Pharmaceutical Council wrote a letter to Mr Nyoni stating:

On 14 October 2010 the Council was advised by a licenced electrical contractor that at 3.32 pm on 14 October he disconnected the electricity supply to Kellerberrin pharmacy.

Council was subsequently advised that the electricity supply to the pharmacy was reconnected at around 10.00 am this morning.

This Council regards the continuous supply of electricity to registered pharmacy premises as essential to the provision of a professional pharmacy service. It is concerned that interruption of electricity supply to any pharmacy may render the provision of a safe and timely pharmacy service difficult.

I suggest you take steps to ensure that this episode is not repeated in the future.

297    On 19 October 2010, Dr Robertson of the Health Department wrote the following letter to Mr Nyoni:

I am writing to you as the Licence Holder for Kellerberrin Pharmacy (Pharmaceutical Chemist Licence 1983, issued under the Poisons Act 1964).

The Department has been advised that the electrical power to Kellerberrin Pharmacy was disconnected, at the request of Western Power, at 3.32 pm on 14 October 2010. I understand the power was reconnected at approximately 10 am on 15 October 2010. I am aware that the electrical power was similarly disconnected from Kellerberrin Pharmacy between 15 March 2010 and 17 March 2010.

Obviously power outages do occur at times as a result of natural disasters. However, this does not appear to be the case in the instances described above.

I am very concerned that continued disconnection of electrical power from Kellerberrin Pharmacy makes it very difficult for scheduled medicines to be stored at the correct temperature, especially over the summer months and particularly if the pharmacy stocks medicines which require refrigeration. Should you choose to operate the pharmacy while the power is off, the risk of non-compliance with the labelling and recording requirements for Schedule 4 and Schedule 8 medicines, as specified in the Poisons Regulations 1965, is also likely to be increased unless you have a back-up power supply for operation of your dispensing computer system.

Section 24 of the Poisons Act 1964 requires the Chief Executive Officer (CEO) to be satisfied that the premises of the applicant is suitable for the purpose for which the application is made and is properly and hygienically equipped for that purpose, before the CEO issues a licence under the Act. Regular and prolonged disconnection of electrical power could be considered to render the premises unsuitable for use as a pharmacy. This letter is to advise you that, should another power disconnection occur under similar circumstances, consideration will be given to suspending your Pharmaceutical Chemist Licence for Kellerberrin Pharmacy.

298    I infer from the contents of this letter that the Health Department had prior to Dr Robertson writing the letter, also been sent the confirmation letter of 14 October signed by Mr Mitchell. I also infer that neither Dr Robertson nor anybody else at the Health Department, had been advised that the disconnection of the electricity to the pharmacy had not been attributable to any fault on the part of Mr Nyoni.

148    At [314] his Honour concluded:

I find that Mr Friend’s intention in sending the email to Mr Bateman and Mr van Bronswijk advising of the impending disconnection of the electricity to the pharmacy, and in procuring the production and dispatch to Mr van Bronswijk of the letter of confirmation signed by Mr Mitchell, was to persuade the Pharmaceutical Council to consider taking disciplinary action against Mr Nyoni. The same is true in relation to the dispatch of the letter of confirmation to the Health Department. This action was part of a continuing campaign by Mr Friend and the Shire to persuade the various bodies which regulated the practice of a pharmacist, either to withhold benefits from, or impose sanctions against, Mr Nyoni so that Mr Nyoni would cease operating the Kellerberrin pharmacy and would be replaced by another pharmacist. That this was Mr Friend’s and the Shire Council’s objective from, at the latest, early January 2010, is obvious from the activities engaged in by Mr Friend and the Shire which are described in [90] to [137] above. The closing submissions of the second, third and fourth respondents, correctly acknowledge this to be the case.

149    As far as I can see, there is no evidence as to Mr Varney’s reason for ordering disconnection of the electricity supply to either Mr Nyoni’s home or to the pharmacy (if he in fact did so). Nor is there any evidence that Mr Friend or Mr Mitchell had any view as to why the electricity was to be disconnected at either site. Perhaps they inferred that a bill had not been paid. His Honour seems to have concluded that although Mr Friend’s correspondence with Mr van Bronswijk, Mr Bateman and the Health Department did not say so, it led the recipients to infer as much. Any such inference may have been prompted by the fact that on a previous occasion, disconnection had been prompted by non-payment of a bill. It may also be that his Honour considered that most people would consider that the likely cause of any unexplained disconnection would be non-payment.

MISFEASANCE IN PUBLIC OFFICE

150    In this country, the authoritative statement of the law concerning the tort of misfeasance in public office is to be found in the decision of the majority of the High Court (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) in Northern Territory v Mengel (1995) 185 CLR 307. At 345, their Honours said:

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.

151    After expressing doubts about possible extensions of the circumstances which might constitute the tort, their Honours discussed aspects of the second form of the tort, that is acting with knowledge that the relevant actions were in excess of power. I am not entirely sure as to whether the present case is based upon the performance of duties with malice or knowing excess of power. The latter basis was pleaded, but the primary Judge seems to have treated the case as being based upon the former. This appeal has been conducted on the same basis. The primary Judge dismissed the claim upon the basis that the alleged misconduct did not occur in the exercise of powers attaching to a public office. That finding, if correct, would dispose of both forms of the tort. As I understand the passage from Mengel cited above, their Honours identified two situations which might constitute misfeasance in public office: the exercise of power with malice, and conduct knowingly performed in excess of power. There may, however, be room for debate about the meaning of the term “power” in that passage and in the primary Judge’s reasons.

152    I should mention a number of other cases. In Emanuele v Hedley and Others (1998) 179 FCR 290 at 300-301, the Full Court held that merely reporting a conversation to a superior cannot generally found an action for misfeasance in public office. The Court endorsed the following observation by the primary Judge in that matter:

However, the prosecution of Emanuele did not follow and was not the consequence of any power given to Hedley to act so as to report that conversation. He did not purport, for example, to declare Emanuele an ineligible tenderer by reference to some supposed head of executive or legislative power in reliance on that conversation. Nor is that alleged. He simply made an allegation to his superior which, if true, might have indicated a criminal intent on Emanuele's part and led to the exclusion of him and his companies from the tender process. That might have been defamation or injurious falsehood. However, as it did not lead to the exercise by him of any legislative or executive power, it is not malfeasance in public office on his part.

153    There has been no challenge to the correctness of this proposition.

154    The Full Court also accepted as correct the following proposition which appears in the reasons of Slade LJ in Jones v Swansea City Council [1990] 1 WLR 54 at 71:

The essence of the tort, as I understand it, is that someone holding public office has misconducted himself by purporting to exercise powers which were conferred on him not for his personal advantage but for the benefit of the public or a section of the public, either with intent to injure another or in the knowledge that he was acting ultra vires. All powers possessed by a local authority, whether conferred by statute or by contract are possessed `solely in order that it may use them for the public good:' see Wade, Administrative Law, 6th ed. (1988), p. 400. In the present context, in my judgment, it is not the juridical nature of the relevant power but the nature of the council's office which is the important consideration.

155    In Jones, the relevant power was the council’s power to pass a resolution concerning the proposed use of a particular site, owned by the council and leased to Jones. Such consent was required from the council as owner, and not in exercise of any power under a town planning scheme or other local government responsibility. The power was nonetheless exercised by the council in its public capacity.

156    The decision in Jones was handed down in the Court of Appeal on 3 March 1989. On 16 March 1989, the House of Lords published its reasons in Calveley v Chief Constable of the Merseyside Police [1989] 1AC 1228. The case involved an allegation that a police officer in investigating alleged corruption by another officer, in the course of the investigation, had made malicious and misleading reports to a superior officer. Lord Bridge of Harwich said at 1240-1241, (the other four members of the House concurring):

I do not regard this as an occasion where it is necessary to explore, still less to attempt to define, the precise limits of the tort of misfeasance in public office. It suffices for present purposes to say that it must at least involve an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office he holds and which is done in bad faith or (possibly) without reasonable cause. The decision to suspend the plaintiff Park under regulation 24 was taken by the deputy Chief Constable. If this had been done maliciously in the sense indicated, this would certainly be capable of constituting the tort of misfeasance in public office. But it was conceded that no malice is alleged against the deputy Chief Constable and that malice on the part of Grant cannot be imputed to him. The pleaded case must therefore stand or fall according as to whether it identifies any act done by Grant in the exercise or purported exercise of a power or authority vested in him as investigating officer which was infected by the malice pleaded against him. I can find no such act identified by the pleading.

No formal application to amend the pleading was made in the course of the argument, but at a late stage a document was placed before your Lordships indicating a pleading of additional particulars under paragraphs 22 and 24 which the plaintiff might seek leave to add by way of amendment if those two paragraphs in the statement of claim were allowed to stand. The particulars which it is suggested might be added under paragraph 24 would read:

"From an early stage (the date whereof the plaintiff cannot further particularise until after discovery and/or interrogatories herein) Grant knew or believed that there were no proper grounds for suspending the plaintiff yet procured the imposition of and/or the continuation of the suspension by continuing the investigation and giving misleading and/or incomplete reports concerning the same."

It is evident that if a police officer investigating suspected criminal or disciplinary offences makes a false report to his superior officer which is defamatory of the suspect and that report is made maliciously so as to lose its status of qualified privilege, the suspect has a cause of action in tort against the author of the report. But the tort is defamation not misfeasance in public office, since the mere making of a report is not a relevant exercise of power or authority by the investigating officer.

157    In Garrett v Attorney-General [1997] 2 NZLR 332 at 349, Blanchard J, on behalf of the Court said, concerning the tort of abuse of process:

The tort has at its base conscious disregard for the interests of those who will be affected by official decision making. There must be an actual or, in the case of recklessness, presumed intent to transgress the limits of power even though it will follow that a person or persons will be likely to be harmed.

158    In Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2AC 1 at 191, Lord Steyn identified the ingredients of the tort of misfeasance in public office as:

    the defendant must be a public officer;

    he or she must exercise power as a public officer; and

    he or she must either specifically intend to injure a person or persons; or knowing that he or she has no power, do an act which will probably injure the relevant plaintiff.

159    In Odhavji Estate v Woodhouse [2003] 3 S.C.R. 263 Iacobucci J said on behalf of the Court at [22]-[23]:

22    What then are the essential ingredients of the tort, at least insofar as it is necessary to determine the issues that arise on the pleadings in this case? In Three Rivers, the House of Lords held that the tort of misfeasance in a public office can arise in one of two ways, what I shall call Category A and Category B. Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff. This understanding of the tort has been endorsed by a number of Canadian courts: see for example Powder Mountain Resorts, supra; Alberta (Minister of Public Works, Supply and Services) (C.A.), supra; and Granite Power Corp. v. Ontario, [2002] O.J. No. 2188 (QL) (S.C.J.). It is important, however, to recall that the two categories merely represent two different ways in which a public officer can commit the tort; in each instance, the plaintiff must prove each of the tort’s constituent elements. It is thus necessary to consider the elements that are common to each form of the tort.

23    In my view, there are two such elements. First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. What distinguishes one form of misfeasance in a public office from the other is the manner in which the plaintiff proves each ingredient of the tort. In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff.

160    It is difficult to see why the formula “conduct in his or her capacity as a public officer”, should be substituted for the words, “exercise of power”, used in Mengel; “the exercise ... of any legislative or executive power”, as in Emanuele; “purporting to exercise powers which were conferred on him ... for the benefit of the public”, as in Jones; “a relevant exercise of power or authority”, as in Calveley; or “exercise of power as a public officer”, as in Three Rivers. Whilst it may be accepted that the power need not be a statutory power or a prerogative power, it does not follow that any action by a public officer-holder which causes harm to another may, without more, constitute misfeasance in public office. There must be some connection between the discharge of his or her official responsibilities and the conduct in question. A public officer-holder will generally discharge his or her function by dealing with other public officers and/or with members of the public. Not everything that he or she does will be done in discharge of such functions. There might be quite minor conduct, such as offering a member of the public a cup of tea, which is clearly not part of the public officer’s functions. Such actions may be performed out of politeness or kindness. There may be more significant conduct which is, nonetheless, not part of the discharge of his or her functions. Providing information about a matter not directly related to such functions may be an example. Agreeing to enquire of another officer, about an unrelated matter, might be another. Offering to ascertain the policy of another government agency might be yet another.

161    The decisions in Emanuele and Calveley demonstrate that public officers may take other actions, much more closely involved with their public functions, which actions will, nonetheless, not be in performance of public duty for the purposes of the tort of misfeasance in public office. Both cases seem to have addressed the effect, or absence of effect of the conduct upon the relevant complainant. Where the conduct in question did not, itself, result in such effect, it was not conduct in public office, even if the possible effect of the conduct was that somebody else might take action with an adverse effect upon the complainant.

162    The use of the term “power or authority” in Calveley, and the statement in Garrett that (the tort of misfeasance in public office) has at its base conscious disregard for the interests of “those who will be affected by official decision making”, assist in determining the meaning of the word “power” in the cases to which I have referred. The definition of that word in the Oxford English Dictionary (2nd ed) discloses two relevant meanings. They are:

Ability to do or effect something or anything, or to act upon a person or thing; and

Authority, given or committed; hence, sometimes, liberty or permission to act.

163    The first definition reflects the view in Garrett that the tort is concerned with effects on people. The second focusses on authority, a word used in Calveley. In my view, the word “power” is used in the cases to describe the capacity of a public office-holder to act in such a way as to produce an effect on another’s rights or interests. I accept that the power need not be expressly conferred by statute. I accept that there will be cases in which the “misfeasance” is a failure to act. However the party alleging misfeasance in public office must prove that the relevant conduct was “in public office”. In the usual course, the matter would be addressed in the pleading. It would not necessarily be enough to say that X was a public officer, and that he or she acted with malice towards the relevant party. It would generally be necessary that the relevant party plead the facts which demonstrated that the conduct occurred in public office. That enquiry might involve an examination of the functions of the agency in which the public officer works, and the duties assigned to him or her within that agency.

164    The difficulty in the present case is identification of the basis upon which it is said that Mr Friend’s conduct occurred in the performance of his function as chief executive officer of the Shire Council. It was not demonstrated that it was any part of the Shire Council’s function to safeguard the availability of pharmaceutical services in the area in question. The responsibility for that function clearly lay with the Pharmacy Board and perhaps, the Health Department. Nor was it demonstrated that any such function was part of Mr Friend’s function as chief executive officer. General statements as to functions and powers of a local authority are hardly likely to justify its interference in matters which are the responsibility of the state government and its agencies.

165    No doubt it will be politically convenient, from time to time, for a local authority to use established lines of communication with other levels of government, to convey concerns about particular matters, whether such concerns are held by the authority itself, or by its voters. It was in this context that the primary Judge concluded that the relevant conduct did not occur in the exercise of power or functions attaching to Mr Friend’s public office or to that of the Shire Council. There may well have been good political reasons for the Shire Council to deal with the perceived problem. It may be that other government agencies would be more likely to listen to the complaints of a local authority, or its chief executive officer than to a private citizen. However the relevant conduct was no more performed in public office than was the preparation of a report in Calveley or the reporting of a conversation in Emanuele. Further, it was not conduct which could adversely affect anybody. Only conduct by officers of other agencies could have had that effect.

166    The appeal should be dismissed with costs.

Associate:

Dated:    13 April 2017

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