26 August 2020
The Federal Court has confirmed that establishing the requisite mental element for the tort of misfeasance in public office presents a high bar. In particular, applicants must present the court with probative evidence to show that the relevant officer acted in bad faith—mere speculation as to the officer’s state of mind will not suffice.
Last Friday, in Plaintiff M83A v Morrison (No 2)  FCA 1198 (Plaintiff M83A), the Federal Court of Australia dismissed a class action accusing a number of past and present Federal Government ministers, Department secretaries and the Commonwealth of misfeasance in public office.
What is misfeasance in public office?
The tort of misfeasance in public office relates to an unauthorised exercise of government powers or functions.
It is a deliberate or intentional tort, meaning that it will only be made out if the relevant mental intention is shown. The state of mind required was described by Brennan J in Northern Territory v Mengel  HCA 65; (1995) 185 CLR 307 (Mengel) as follows (at 357):
“The mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce.”
Also in Mengel, Deane J held (at 370-371) that the mental element for misfeasance of public office could be established where the relevant act was done with one of the following three mental states:
The case law makes it clear that proving the knowing abuse of public power is at the heart of establishing the tort.
A finding of misfeasance in public office, particularly against a Commonwealth Government Minister, is a grave matter with potentially serious legal consequences. This was observed by the Full Federal Court in Commonwealth v Fernando  FCAFC 18; 200 FCR 1 as follows (at ):
“A finding that a Commonwealth Government Minister has deliberately exercised an important statutory power knowing that, in doing so, he was acting unlawfully is properly to be characterised as grave. The legal consequences are potentially serious as too is the effect on the Minister’s reputation. In circumstances in which, on the facts found, conflicting inferences are open and one of those inferences is favourable to the respondent, the Court will not be satisfied that the applicant’s case has been proved to the necessary standard. For the reasons which we have explained this is such a case.”
The courts accordingly tend to exercise a considerable degree of caution in determining whether the elements of the tort, including the mental element, have been adequately established.
Background to Plaintiff M83A
The Plaintiff M83A case was a class action brought by Phi Finney McDonald, on behalf of approximately 1,600 detainees on Nauru who had been issued with Regional Processing Centre visas (RPC visas) every three months while detained there.
The case was brought against three very senior government ministers, being Scott Morrison, Peter Dutton and Tony Burke, on the basis that they had held Federal Ministerial positions on and from 3 August 2013, pursuant to which they had responsibility for administering the Migration Act 1958 (Cth) (Migration Act).
Claims were also brought against two Departmental Secretaries, being Martin Bowles and Michael Pezzullo, on the basis that they had held positions as the Secretary to the (variously titled) department administering the Migration Act.
The Commonwealth was named as the sixth respondent on the basis that it was allegedly vicariously liable for the conduct of the five individual respondents.
The applicants contended that the respondents engaged in misfeasance in public office in four ways to attain RPC visas for detainees on Nauru. The central allegation was that “each of the individual Respondents authorised, or directed, or caused or failed to prevent officers of the Commonwealth acting unlawfully in applying for and requesting RPC visas on behalf of the Applicants and Group Members; and did so with reckless disregard for the means of ascertaining the extent of his power to do so” (at ).
The Court’s decision – state of mind required for misfeasance in public office
The respondents successfully applied for orders that the proceeding be summarily dismissed pursuant to rule 26.01 of the Federal Court Rules 2001 (Cth) (Rules) and section 31A(2) of the Federal Court of Australia Act 1976 (Cth), and judgment entered in their favour. The respondents also applied for orders pursuant to rule 16.21 of the Rules that the applicants’ further amended statement of claim (FASOC) be struck out in its entirety, without leave to re-plead.
The Court held that the applicants had failed to plead the requisite state of mind to establish the tort of misfeasance in public office. The Court said that it was “firmly persuaded the respondents are correct in the central submission which grounded both of their applications, relating to the requisite state of mind required for the tort of misfeasance in public office” (at ).
The Court held that the applicants had no factual basis to allege the requisite state of mind and that they were merely speculating and hoping that the necessary evidence would arise in the course of discovery and/or cross-examination. In this context, Justice Mortimer remarked (at ):
“In the context of any proceeding, let alone one making the grave allegation of misfeasance in public office against Commonwealth Ministers and Departmental Secretaries, the hope that a basis for a cause of action might emerge in the witness box will be unlikely ever to justify permitting applicants to re-plead their case, and proceed to trial so as to keep the possibility of that moment in the witness box alive.”
The Court acknowledged that the applicants may have faced an “information asymmetry”, which arguably meant they could only make their case by pleading facts they did not know. Nevertheless, the Court held that the seriousness of an allegation of misfeasance in public office, and the elements which must be proven to establish the tort, meant that this argument could not provide an answer to the deficiencies in the applicants’ case. In this context, the Court held (at ) that “the absence of any information capable of providing a probative basis for alleging the requisite state(s) of mind for misfeasance in each of the individual respondents is a flaw which cannot be answered by the aspirational contention that something may emerge during discovery.”
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.