Twining v Curtis [2009] ACTSC 106 (2 September 2009)

Last Updated: 22 September 2009

ANTHONY ALBERT TWINING v JACQUELINE ANNE CURTIS [2009]

ACTSC 106 (2 September 2009)

CIVIL LAW – appeal from interlocutory order of the Master to a single judge of the Supreme Court – appeal from Master’s decision to strike out pleadings under r 425 of the Court Procedures Rules 2006 (ACT) on grounds of failing to disclose a reasonable cause of action – pleadings alleging misfeasance in public office – application of principles in House v The King – whether elements of tort correctly identified – whether any mistakes of fact.

CIVIL LAW – tort of misfeasance in public office – elements of tort – need to plead that defendant occupied a public office with public duties – being on the public payroll not sufficient without public duty – holding named position in public agency not sufficient without public duty – whether pleadings allege defendant held a public office – whether conduct complained of breached a public duty – whether conduct obligations under ss 10 and 13 of the Public Service Act 1999 (Cth) amount to public duties – whether s 21 of the Acts Interpretation Act 1901 (Cth) provides that all APS employees hold public offices for purposes of tort of misfeasance in public office.

CIVIL LAW – tort of misfeasance in public office – elements of tort – whether plaintiff required to be a member of the public, or a member of the public to whom the public duty concerned is owed.

CIVIL LAW – tort of misfeasance in public office – whether defendant acted beyond power in talking to plaintiff’s supervisor about plaintiff – whether conversation was an exercise of the power associated with the defendant’s public duties – whether every action done by a public office-holder who has public duties must be an exercise of the power associated with those duties.

CIVIL LAW – tort of misfeasance in public office – elements of tort – act must be done maliciously – act done in valid exercise of power, such as termination of employment, is not sufficient irrespective of harm caused – allegation of apparently accurate statements about remedies available to employees on probation not a sufficient pleading of malice.

CIVIL LAW – procedure – pleadings – tort of misfeasance in public office – need to plead causal link between defendant’s conduct and alleged harm – whether any causal link was pleaded between defendant’s actions and termination of plaintiff’s employment.

CIVIL LAW – procedure – pleadings – tort of misfeasance in public office – need to plead malice specifically under r 407(1)(j) of the Court Procedure Rules 2006 (ACT) – pleadings expressed in subjunctive mood and using double negative – no place for rhetorical flourishes in pleadings.

CIVIL LAW – procedure – pleadings – significance of “vulnerability” in relation to negligence causing economic loss – whether pleadings relating to effects on plaintiff of defendant’s alleged conduct were relevant to plaintiff’s “vulnerability”.

CIVIL LAW – tort of misfeasance in public office – whether defendant breached a public duty by forwarding an email sent to her by plaintiff without plaintiff’s consent – operation of s 16 of Public Service Act 1999 (Cth) and s 14 of Privacy Act 1988 (Cth) – whether those sections create a public duty not to pass on emails – operation of “whistleblower” legislation – s 16 of Public Service Act provides protection from victimisation where “whistleblower” reports alleged breaches of Code of Conduct – s 16 does not restrict communications of such reports – whether Privacy Act obliged defendant not to pass on emails.

APPEAL – errors of fact – employment – probationary period – whether Master erred in finding that extension of probationary period was a benefit and not a detriment – whether any finding about plaintiff’s probation was available to the Master.

APPEAL – errors of fact – employment – plaintiff’s transfer to another position – whether Master erred in finding that transfer had a neutral effect on plaintiff’s employment situation – Master could have found that transfer not pleaded as causing harm or damage.

Acts Interpretation Act 1901 (Cth), ss 21, 17AA

Court Procedures Rules 2006 (ACT), rr 425, 407(1)(j)

Privacy Act 1988 (Cth), s 14

Public Service Act 1999 (Cth), ss 13, 22(6), 638, 7, 16

Supreme Court Act 1933 (ACT), s 9(2)(a)

Workplace Relations Act 1996 (Cth), ss 22(6), 638,

Cannon v Tahche [2002] VSCA 84; [2002] 5 VR 317

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

House v The King [1936] HCA 40; (1936) 55 CLR 499

Leerdam & Anor v Noori & Ors [2009] NSWCA 90; (2009) 227 FLR 210

Neilson and Anor v City of Swan [2006] WASCA 94; (2006) 147 LGERA 136

Noori v Leerdam & Ors [2008] NSWSC 515

Northern Territory v Mengel [1995] HCA 65; (1994) 185 CLR 307

Pemberton v The Attorney-General and Anor [1978] Tas. S.R.

Tampion v Anderson; Tampion v Anderson and Just [1973] VR 715

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SC 178 of 2007

Judge: Penfold J

Supreme Court of the ACT

Date: 2 September 2009

IN THE SUPREME COURT OF THE )

) No. SC 178 of 2007

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ANTHONY ALBERT TWINING

Appellant

AND: JACQUELINE ANNE CURTIS

Respondent

ORDER

Judge: Penfold J

Date: 2 September 2009

Place: Canberra

THE COURT ORDERS THAT:

(a) The appeal against the Master’s decision is upheld in part.

(b) The amended statement of claim be struck out, but for the reasons given by the Master as varied by this judgment.

(c) Mr Twining will require leave to file a further amended statement of claim.

Introduction

1. Anthony Twining has appealed from a decision of the Master on 29 January 2008 striking out an amended statement of claim that was filed on 3 October 2007.

2. The Master’s order was an interlocutory order and under s 9(2)(a) of the Supreme Court Act 1933, Mr Twining’s appeal lies to a single judge of this Court.

3. In striking out Mr Twining’s statement of claim, the Master was exercising a discretion under r 425 of the Court Procedures Rules 2006 (ACT), which permits a pleading to be struck out, among other things, if it discloses no reasonable cause of action. In an appeal against the exercise of that discretion, it is not enough to argue that the discretion could or should have been exercised differently. The appellant needs to show that the Master’s decision was infected by some kind of error. In House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, Dixon, Evatt and McTiernan JJ explained the principles as follows:

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

4. Mr Twining indicated that he did not seek to introduce further evidence on the appeal.

Background

5. Mr Twining was engaged in June 2004 as the executive assistant to a group manager in the Australian Public Service Commission (the Commission) in Canberra. His employment, which was subject to successful completion of a probationary period, was terminated in November 2004. Mr Twining claims that the defendant, Jacqueline Curtis, the Commission’s Director of Human Resources, abused the power of her office to his detriment on three occasions, and that the termination of his employment resulted from these abuses of power.

6. Mr Twining’s claim was initially based on negligence, but the amended statement of claim relies on the tort of misfeasance in public office. In considering whether the statement of claim should be struck out, the Master identified the question for his determination as follows (at [11]):

The question for determination by the Court on this application is whether the facts pleaded in the amended statement of claim, if proved, would be capable of establishing that cause of action against the defendant. If the plaintiff has an arguable case, he should be allowed to take it to trial. The statement of claim should be struck out only if it meets the stringent test for which the authority generally cited is the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129.

7. The Master first considered the elements of the tort of misfeasance in public office, and then examined Ms Curtis’s alleged abuses of power to determine whether there was any possibility of the tort being made out. Apart from the Master’s application of the General Steel test (which was not specifically challenged by Mr Twining), it is possible that the Master fell into error in his identification of the elements of the tort, or that he fell into error in considering the significance of the facts pleaded.

The facts as alleged

8. Mr Twining was engaged as an administrative officer (APS 3-4) in the Commission, starting on 7 June 2004. His employment was subject to successful completion of a probationary period. He was initially assigned duties as executive assistant to Christine Flynn, then a group manager with the Commission. The defendant, Ms Curtis, was the Director of Human Resources with the Commission. Mr Twining claims that Ms Curtis abused the power of her office to his detriment on three separate occasions, causing the termination of his employment by the Commission on 5 November 2004. Mr Twining says that on each of the three occasions, Ms Curtis’s behaviour amounted to misfeasance in public office (I shall refer to this behaviour as the first, second and third alleged misfeasances).

9. The first alleged misfeasance took place on or about 16 June 2004. The Master (at [5]) describes it as follows (for ease of reading I have in each extract from the Master’s descriptions replaced the Master’s references to the plaintiff and the defendant with the parties’ names):

... Ms Curtis falsely informed Mr Twining’s supervisor that Mr Twining had discussed the circumstances of his engagement with another employee, thereby betraying his supervisor’s trust. He says that Ms Curtis told the supervisor that he (Mr Twining) had made inappropriate comments to the fellow employee and had disclosed to the fellow employee the process the Commission had used to engage him. Mr Twining asserts that Ms Curtis also falsely advised the fellow employee that she had been entitled to appeal against Mr Twining’s engagement by the Commission. Mr Twining says that Ms Curtis’s exercise of her power in these circumstances was invalid, reckless and calculated to harm him.

10. The second alleged misfeasance allegedly occurred on 17 September 2004. In the Master’s words (at [6]):

... Ms Curtis authorised an extension of Mr Twining’s probationary period and a transfer to another position within the Commission without allowing Mr Twining to see or respond to a probation report upon which she based her decision. The probation report, Mr Twining says, had been prepared by his supervisor and had contained comments adverse to him in relation to the circumstances of the first instance. Mr Twining was shown the probation report three days later. He complained to Ms Curtis about its contents but she refused to do anything about it and in particular to alter her decision. Again Mr Twining says that Ms Curtis’s exercise of her power was invalid, reckless and calculated to harm him.

11. Finally, the Master records (at [7]-[9]) that on 20 October 2004, there was an exchange of emails between Mr Twining and Ms Curtis; Ms Curtis copied her email (including a copy of Mr Twining’s email) to Mr Twining’s supervisor and to his line manager (this was the third alleged misfeasance):

... Mr Twining sent Ms Curtis an email in the following terms:

Subject: Further concerns

Jacqui

Could you please kindly advise Christine that the expression “good boy” (repeated on Monday 18 October) unsettles me. I remind you both that my lowly station is not a reliable indicator of my legal capacity.

Thank you

(Christine was the plaintiff’s supervisor)

Later on the same day, Ms Curtis replied to Mr Twining, sending copies of her reply and his earlier email to his supervisor and to another member of the staff of the Commission, Mr Twining’s line manager. Ms Curtis’s reply read as follows:

Tony

I have raised this with Christine and she is now aware of your concerns about this level of informality and how it makes you feel.

If you have other concerns you could speak to her directly in the first instance or if you are uncomfortable with this approach you could discuss with your line manager Ross, who would be happy to raise these things on your behalf.

Jacqui Curtis

Mr Twining’s complaint about this is that Ms Curtis forwarded what he describes as a private email to the line manager without his consent. He says that this prejudiced the line manager against him and led to the line manager recommending the termination of his employment. Mr Twining says that Ms Curtis involved the line manager in circumstances where she was aware that Mr Twining had requested a values and code of conduct investigation, pursuant to Ms Curtis’s advice, about earlier occasions when Mr Twining’s supervisor had addressed him as a good boy. He further says that Ms Curtis knew that the line manager was not a party to the pending investigation. Again, he asserts Ms Curtis exercised her power in a manner which was invalid, reckless and calculated to harm him.

Grounds of appeal

12. On 29 February 2008 Mr Twining lodged a document headed Grounds of Appeal. The document combines descriptions of the Master’s alleged errors with Mr Twining’s submissions about those grounds. I shall deal with each ground of appeal.

Appeal ground 1—responsibilities of the respondent’s position

13. Appeal ground 1 is that:

The Master erred in finding that nothing was pleaded about the responsibilities of the respondent’s position (Reasons para 23).

14. Mr Twining points out that his pleading did (albeit briefly) refer to Ms Curtis’s responsibilities at paragraph (5) of the draft amended statement of claim, as follows:

... The defendant’s role included providing advice to senior executives and other Commission staff on the application of the Public Service Act 1999, the Public Service Regulations 1999, the Workplace Relations Act 1996 and other laws, instruments and guidelines to which Commonwealth agencies are generally subject.

15. Mr Twining further says that the Master should have found that he was not required to plead about all the responsibilities of Ms Curtis’s position because he could not reasonably be expected to know the full extent of those responsibilities, because he had not seen relevant documentation.

16. I accept Mr Twining’s submission that he was not required to plead all the responsibilities of Ms Curtis’s position, but in order to establish the tort, the plaintiff does need to plead that the defendant occupied a public office, and had a public duty to exercise the powers she purported to exercise in her dealings with the plaintiff. There is nothing that I can see in the pleading that addresses either of these issues.

17. It is clear from the authorities that being on the public payroll, or even having a named position in a public agency, is not, in the absence of a public duty, sufficient to establish that a person holds a public office. In Leerdam & Anor v Noori & Ors [2009] NSWCA 90; (2009) 227 FLR 210 at [16], Spigelman CJ said:

The concept of an “office”, in the context of liability for abuse of power, connotes an official position to which continuing functions or duties are assigned. Those duties or functions must be of a “public” nature. It is not sufficient merely to be employed by a public authority for public purposes.

18. The simple recitation of the fact that Ms Curtis “was employed by the Commission ... in the position of Director of Human Resources, Corporate Group” does not by itself advance Mr Twining’s cause.

19. Nor is there anything that I can see in the pleadings that identifies public duties of Ms Curtis that she might have exercised in the course of her dealings with Mr Twining; the duty of Ms Curtis as identified in the pleadings, namely providing advice to senior executives about the application of relevant legislation, even if it is a public duty (which I doubt), is entirely different from her role (whatever that role amounted to) in the management and supervision of Mr Twining as an employee in the same agency, and in the termination of Mr Twining’s employment.

20. The Master may have been mistaken in finding that “there is nothing pleaded about the responsibilities of” Ms Curtis’s position, but he could correctly have found that there was nothing relevant pleaded about the responsibilities of her position, and so any error on the Master’s part is not material.

Appeal ground 2—a mischievous conversation

21. Appeal ground 2 is that:

The Master erred in finding that the respondent’s alleged acts were “at most ... a conversation which may have been mischievous”.

22. It is not clear to me that the Master in fact made a finding about the nature of the conversation between Ms Curtis and Ms Flynn (the first alleged misfeasance). The comment complained of by Mr Twining was in effect a gratuitous aside to the Master’s real finding in relation to this conversation, which was set out in the previous sentences as follows at [23]:

It does not seem to me that the conduct complained of in relation to the first instance could be regarded as constituting the exercise of power in a public office. It does not seem to have amounted to the exercise of any authority at all.

23. That is, the Master has found that the pleadings do not appear to identify an action by Ms Curtis that can properly be characterised as the exercise of a public power by the holder of a public office. Whether the conversation concerned was mischievous or not, the Master has found that it was not the exercise of a public power and was therefore not usefully referred to in the pleadings.

24. Mr Twining’s submission on appeal that “the Master should have found, at least, that the respondent owed the appellant a duty under Sections 10 and 13 of the Public Service Act not to commit the alleged acts” is not to the point. The pleadings do largely, albeit selectively, summarise the conduct obligations cast on Ms Curtis, in common with every other person employed under that Act, by s 13 of the Public Service Act 1999 (Cth) (Mr Twining has added several other obligations not obviously drawn from that source, specifically paragraphs (7)(h), (i) and (j)). Mr Twining has not, however, pleaded that these conduct obligations amount to public duties conferred on public officers sufficient to bring them within the scope of the tort of misfeasance in a public office.

25. There is no error in this aspect of the Master’s decision.

Appeal grounds 3 and 4—allegations about termination of plaintiff’s employment

26. Appeal grounds 3 and 4 are as follows:

3. The Master erred in finding that no damage was alleged to have flowed from the respondent’s alleged acts (Reasons para 23).

4. The Master erred in failing to find even the possibility of a causal link between the respondent’s alleged acts (comprising the alleged first instance of misfeasance) and the termination of the appellant’s employment.

27. The Master said, in relation to the first alleged misfeasance at [23]:

It is not alleged that the first instance resulted in termination of the plaintiff’s employment. Indeed it is clear that it did not. No damage is alleged to have flowed from it.

28. Mr Twining says that he did plead to “the immediate harm caused by the respondent’s alleged acts at paragraph 13 of the draft amended statement of claim”.

29. In paragraph (13), Mr Twining pleads that Ms Curtis’s act was calculated to harm Mr Twining “because it could have had no outcome or consequences other than” a variety of specified outcomes (not all of them relevant to Mr Twining). The subjunctive mood and double negative structure of this part of the pleadings (“could have had no outcome other than”) may be simply a rhetorical flourish, but pleadings are not the place for such an approach, and saying that an act could have had no other consequences than specified outcomes is not the same as pleading that the act did cause those specified outcomes.

30. Mr Twining also asserts that damage is pleaded in paragraph (2) of the draft amended statement of claim. In that paragraph, Mr Twining asserts that Ms Curtis’s “misfeasance in public office fatally prejudiced the plaintiff’s employment and caused the termination of the plaintiff’s employment by the plaintiff’s employer”. However, no link is pleaded between Ms Curtis’s action in making an allegedly false remark to Mr Twining’s supervisor and any damage suffered by Mr Twining as a result of the termination of his employment, nor even a link between Ms Curtis’s action and that termination. As the Master points out, it is clear that Ms Curtis’s actions in the first incident did not result in the termination of Mr Twining’s employment.

31. The Master does not, as implied in appeal ground 4, reject the possibility of a causal link in so many words; the error alleged by Mr Twining appears to reflect the Master’s finding, dealt with in [27] above, that the pleadings did not allege damage flowing from Ms Curtis’s first alleged misfeasance.

32. Mr Twining argues that, in the absence of any pleadings from Ms Curtis to negate such a possibility, the Master should have found that there was “a possible causal link” between Ms Curtis’s alleged acts and the termination of Mr Twining’s employment. The problem is that no such causal link was pleaded; the fact that one event occurs later in time than another event does not of itself establish any kind of causal link, and in the absence of any other possible basis for inferring a causal link, it would have been erroneous for the Master to have inferred such a causal link and unfair to Ms Curtis to require her to plead to such a causal link.

33. There is no error in the Master’s finding to the effect that the pleadings did not identify damage flowing from the first alleged misfeasance. Nor is there error in the Master’s failure, in the absence of any relevant pleadings, to infer a causal link between that first alleged misfeasance and the termination of Mr Twining’s employment.

Appeal ground 5—were respondent’s acts beyond power?

34. Appeal ground 5 is that:

The Master erred in failing to find that the respondent’s alleged acts were beyond power.

35. Mr Twining argues that if the Master is correct in saying that Ms Curtis’s conversation with a colleague about Mr Twining did not amount to “the exercise of any authority at all”, then that conversation must have been beyond power, and therefore able to provide the basis for the tort of misfeasance in public office. In the context, the Master’s reference to “the exercise of any authority” might usefully have been a reference to the exercise of any power, but if the Master had so expressed himself, that would only have strengthened Mr Twining’s argument. The substance of the argument needs to be addressed.

36. I note that this appeal ground assumes that Mr Twining has established that there was a relevant public office and relevant public duties. My comments on the appeal ground do not imply an acceptance of that assumption.

37. Mr Twining’s argument appears to be based on the premise that every action done by a public officer who has public duties, or perhaps more realistically every such action done apparently in an official rather than a personal capacity, must necessarily be done in the exercise of the power associated with those public duties. This must be wrong, and must be obviously wrong to anyone who has ever worked in or dealt with an organisation.

38. It is almost impossible to imagine a person occupying a position in an organisation who does nothing in that capacity except the identified tasks for which he or she is employed. Any member of an organisation will spend parts of his or her days not performing those specific tasks, but undertaking a range of other associated tasks, which might, depending on the person’s role in the hierarchy, include such things as allocating tasks to more junior staff or referring more complex tasks to more senior staff, reporting to supervisors or senior managers about work output and resource levels, maintaining an awareness of relevant legislation, organisational policies and other developments relevant to those tasks and to the person’s organisational role, attending to communications from a wide range of people and other organisations, contributing to corporate decisions or policies, and in particular, dealing with other staff in the organisation, whether as a supervisor, a peer or a person supervised. If such a person supervises other staff in the agency, that person may have a further range of duties that are unlikely to be reflected in any formal duty statement or any express conferral of power (for instance, identification of vacancies that need to be filled, obtaining approval for filling vacancies, choosing recruitment methods, selecting new employees, inducting and training new employees, allocating work to employees, monitoring employees’ productivity or work quality and participating in formal or informal staff appraisal). The fact that such tasks are performed by a person who happens to hold a public office and performs public duties within the meaning of the tort does not in any way render those tasks necessarily part of the performance of the public duties. Even more clearly, the holding of a public office, and the performance of public duties, cannot turn routine social or even official interaction with fellow employees into the performance of public duties attached to that public office.

39. In this particular case, Ms Curtis’s alleged conversation might have been part of her role in the management of staff of the Commission, or more specifically related to her responsibility for the employees she supervised, or might have been a more gratuitous interaction with Ms Flynn arising generally out of activities taking place within the Commission. Either way, the conversation need not be, and in this case has clearly not been pleaded to be, a part of the performance of any public duty that might have been conferred on Ms Curtis. A finding that the conversation did not involve the exercise of any authority removes it from being associated with any exercise of a public power or duty—it does not render it therefore an improper attempt to exercise such a power or duty.

40. The Master’s comment that Ms Curtis was not exercising “any authority at all” does not reveal any error.

Appeal ground 6—”member of the public”

41. Appeal ground 6 is that:

The Master erred in finding that the appellant was required to be a “member of the public” (Reasons para 25) to come within the scope of the tort.

42. The Master reviewed a number of cases dealing with the tort of misfeasance in public office. He identified two decisions of State appeal courts, Tampion v Anderson; Tampion v Anderson and Just [1973] VR 715 (Tampion) and Pemberton v The Attorney-General and Anor [1978] Tas. S.R. 1 (Pemberton), which he found required the plaintiff in such an action to be “a member of the public”. He then considered the High Court case of Northern Territory v Mengel [1995] HCA 65; (1994) 185 CLR 307 (Mengel), in which Tampion and Pemberton were considered without criticism, and, while noting a comment from Brennan J that appeared inconsistent with Tampion and Pemberton, concluded at [22] that:

For my part, it does not seem to me with the greatest of respect that the observations [of Brennan J] can be accorded authoritative status. The Court in Mengel was constituted by seven justices, five of whom joined in the majority judgment. Only Brennan J, in a single judgment concurring as to the outcome, raised the “member of the public” issue and expressed a view about it. It seems to me that more is required if the High Court is to be seen to have overruled the judgments of courts of three judges in the Supreme Courts of two states of Australia. Sitting at first instance in this Court, I am obliged, it seems to me, to follow Tampion and Pemberton until they are unequivocally overruled.

43. The Master’s reading of the Tampion and Pemberton judgments as requiring a plaintiff to be “a member of the public” diverges from the words of those cases and from the interpretation of those cases found in later cases.

44. However, to deal properly with this ground of appeal it is necessary to deal both with the Master’s express finding, and also with the finding he might more appropriately have made as a result of his conclusion that he should follow Tampion and Pemberton until they are “unequivocally overruled”.

Misfeasance in public office—elements of the tort

45. First, it seems that the Master misinterpreted Tampion and Pemberton in finding that they required a successful plaintiff to be “a member of the public”. What both those cases actually require is that the plaintiff must be a member of the public to whom the public duty concerned was owed. Tampion, for instance, refers to the need for the plaintiff to show that he was “the member of the public, or one of the members of the public, to whom the holder of the office owed a duty not to commit the particular abuse complained of” (emphasis added). Subsequent judicial consideration has addressed the question whether a duty needs to be owed to the plaintiff without apparently considering that the reference to “member of the public” imposes a further test of the plaintiff’s status.

46. In Tampion, the Victorian Court of Appeal said (at 720), by way of introduction to its consideration of the plaintiff’s claim:

The office must be one the holder of which owes duties to members of the public as to how the office shall be exercised ... [T]o be able to sustain an action upon this basis a plaintiff must not only show damage from the abuse; he must also show that he was the member of the public, or one of the members of the public, to whom the holder of the office owed a duty not to commit the particular abuse complained of.

47. In Pemberton, two members of the Full Court of the Supreme Court of Tasmania (Neasey and Chambers JJ) expressly relied on the comments in Tampion quoted at [46] above (Nettlefold J reached the same conclusion on this issue, but did not find it necessary to refer to authority). Neasey J said (at 14), having quoted the relevant paragraph from Tampion at 12, that:

[the defendant] was not in the circumstances of this case exercising a public office in the relevant sense; nor was the [plaintiff] a member of the public in the relevant sense.

48. As noted by the Master, the tort of misfeasance in public office was subsequently considered by the High Court in Mengel, in which the court’s decision was unanimous and in which Mason CJ and Dawson, Toohey, Gaudron and McHugh JJ provided a joint judgment while Deane J and Brennan J wrote individual judgments. In relation to the tort of misfeasance in public office, each of the judgments focused on the necessary mental element for the tort rather than questions of the status of a plaintiff, but Deane J said (at 370) that the tort was “well-established”, and that its elements were:

(i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff.

49. Brennan J, in the context of his views about the mental element, said at 357:

In my opinion, there is no additional element which requires the identification of the plaintiff as a member of a class to whom the public officer owes a particular duty, though the position of the plaintiff may be relevant to the validity of the public officer’s conduct. For example, the officer’s administrative act may be invalid because he or she did not treat the plaintiff with procedural fairness. It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete. [reference omitted]

50. It is difficult to reconcile the statements in Tampion and Pemberton quoted above with Deane J’s explanation of the elements of the tort set out at [48] above and the statement of Brennan J that “there is no additional element which requires the identification of the plaintiff as a member of a class to whom the public officer owes a particular duty, though the position of the plaintiff may be relevant to the validity of the public officer’s conduct.” The inconsistency between the two approaches seems to arise from the implication of the finding in Tampion that it is possible to identify a duty which is properly regarded as a public duty but which is not owed to all members of the public who might suffer loss or damage through the improper purported performance of that duty. It is implicit in the comments of Deane and Brennan JJ in Mengel that a public duty properly so described is not limited in its significance to a narrower group of people to whom the duty can be said to be owed; rather, if the duty is a public duty, and misfeasance causes loss or harm to a person, then the cause of action arises.

51. I have had the benefit of being able to consider several decisions that were not available to the Master or were not brought to his attention. For present purposes the most useful is the decision of the Court of Appeal of Western Australia in the matter of Neilson and Anor v City of Swan (2006) 147 LGERA 136; [2006] WASCA 94 (Neilson). I note that having regard to the High Court’s comments in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, it is appropriate to treat that judgment as authoritative unless there are particular reasons not to follow it. In Farah Constructions, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said (at [35]):

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. [reference omitted]

52. The reasons of Buss JA in Neilson, with whom Wheeler and Pullin JJA agreed, provide an elegant review of the difficult collection of judgments given before and since Mengel. Under the heading “The plaintiff’s standing to sue, including the nature of any duty which must be owed by the defendant to the plaintiff”, Buss JA reviews Tampion and Mengel, and concludes at [52] that the Court in Mengel:

... did not ... accept or endorse the statement in Tampion that a plaintiff who alleges misfeasance in public office must be “the member of the public, or one of the members of the public, to whom the holder of the office owed a duty not to commit the particular abuse complained of”.

53. Buss JA then (at [61]-[65]) refers to Cannon v Tahche [2002] VSCA 84; [2002] 5 VR 317 (Cannon), in which the Court of Appeal in Victoria held that the plaintiff in an action for misfeasance in public office must establish that the defendant public officer owed him or her a duty to exercise the relevant power “legitimately” or “properly”. The Court found that the defendants did not hold public offices, but also that if they did, any duties they owed were not owed to the plaintiff but to the court. The High Court, in refusing special leave to appeal, endorsed the finding that the duties concerned were owed to the court, but declined to consider appeal points relating to the nature and characteristics of a “public office” and to the need to establish that a duty is owed to the plaintiff (Neilson at [65]).

54. The High Court’s refusal of special leave in Cannon leaves the law on this element of the tort of misfeasance in public office less than clear. However, in the absence of any review by the High Court of its decision in Mengel, I consider it appropriate at this stage to rely on the principles that are stated in, or can be inferred from, Mengel, rather than to adopt the possibly inconsistent principles set out in Cannon, especially since those principles seem to have been largely drawn from Tampion. A similar approach was adopted by Buss JA, who said at [66]:

It is necessary, of course, that the plaintiff, in an action for misfeasance in public office, establish a legal standing to sue. But, in my opinion:

(a) on the current state of the authorities in relation to a tort which is still evolving;

(b) in the absence of binding authority in the High Court; and

(c) in the context of proceedings which are analogous to a strike-out application,

it is at least reasonably arguable that it is not necessary for the plaintiff to establish that he or she is a member of a class to whom the public officer owes a particular common law or statutory duty.

55. After argument had initially concluded in this matter, the case of Noori v Leerdam & Ors [2008] NSWSC 515 was decided by the New South Wales Supreme Court. This decision was brought to my attention by the defendants, and a further hearing was held to enable Mr Twining to make submissions on that case. An appeal against the decision in Noori v Leerdam was upheld by the NSW Court of Appeal (Leerdam & Anor v Noori & Ors [2009] NSWCA 90; (2009) 227 FLR 210.

56. The case concerned a solicitor in a private law firm engaged to conduct cases on behalf of the federal Minister responsible for immigration matters. The New South Wales Court of Appeal upheld an appeal against a finding that the solicitor, in providing that service to his public sector client, was a public officer exercising a public power or performing a public function. The case, while turning on factual issues too far removed from this case to be directly relevant, provides, with respect, a useful analysis of questions relating to the identification of public officers and public powers or duties, but does not address the issue before me, namely whether once a public duty is identified, a plaintiff needs to establish that it is owed to the plaintiff.

57. Accordingly, I respectfully adopt the views of Buss JA in Neilson at [66] that, at least for the purpose of proceedings in the nature of a strike-out application, it is “reasonably arguable that it is not necessary for the plaintiff to establish that he or she is a member of a class to whom the public officer owes a particular common law or statutory duty”.

Conclusions

58. Thus, I find that the Master erred in finding that Mr Twining was required to be a member of the public in order to come within the scope of the tort. I further find that the Master would also have been in error if he had decided that, once he had properly pleaded a public duty, Mr Twining also needed to plead that he was a member of a class of persons to whom Ms Curtis owed that public duty.

Appeal ground 7—the meeting between the appellant, the respondent and Ms Flynn

59. Appeal ground 7 is that:

The Master erred in failing to make a finding about the alleged conversation pleaded at paragraph (19) of the draft amended statement of claim.

60. Mr Twining says that the Master should have found that paragraph (19) of the draft amended statement of claim identified Ms Curtis’s motive in all the three actions complained of, being “to fatally prejudice and, thereby, cause the termination of the appellant’s employment”. There are several problems with Mr Twining’s argument about the Master’s handling of paragraph (19).

61. The aim of causing the termination of a person’s employment is not necessarily an improper aim for a Director of Human Resources. There will be many occasions on which, for reasons to do with the person’s capacity or willingness to perform the work concerned, or alternatively an organisation’s continuing capacity to fund the person’s employment, it is in fact the job of a Director of Human Resources to terminate, or arrange the termination of, a person’s employment, and clearly it would be the Director’s aim in such a case to ensure that the termination was effective. The use of the emotive expression “fatally prejudice” in conjunction with the reference to causing the termination of Mr Twining’s employment does not of itself establish that there was anything improper about Ms Curtis’s “motive”, even if her aim was in fact to achieve the termination of Mr Twining’s employment.

62. Thus, Mr Twining needed to plead that Ms Curtis sought the termination of his employment maliciously or with the intention to cause harm. I note in this context that an act that will cause harm to a person (for instance termination of employment, refusal of an application for a benefit or requirement to take onerous actions) is not of itself sufficient to found the tort of misfeasance in public office. In Mengel Brennan J at 356 said:

There can be no tortious liability for an act or omission which is done or made in valid exercise of a power. A valid exercise of power by a public officer may inflict on another an unintended but foreseeable loss—or even an intended loss—but, if the exercise of the power is valid, the other’s loss is authorised by the law creating the power. In that case, the conduct of the public officer does not infringe an interest which the common law protects.

63. The plaintiff must separately show malice or an intention to cause injury that would not have been caused by a valid exercise of the power concerned.

64. Mr Twining has not in paragraph (19) specifically pleaded malice (which is, among other things, required by r 407(1)(j) of the Court Procedures Rules 2006 (ACT)). Rather, he has in that paragraph described a meeting involving himself, his supervisor and Ms Curtis as follows:

At the abovementioned meeting, the plaintiff said to the defendant, “So this is a kangaroo court is it?” The defendant replied that, because the plaintiff could not access the unfair dismissal provisions of the Workplace Relations Act (or words to that effect) “We can do whatever we like.” When the plaintiff objected to being removed from the executive assistant position, the defendant replied, “She [Ms Flynn] can do whatever she likes.” The defendant told the plaintiff that it was in the plaintiff’s “own best interests” to accept the defendant’s decision, and that the plaintiff should “do as Ana [Strmota] has done: put your head down and prove that you can be a worthwhile employee.” The plaintiff told the defendant, “I’ll be the judge of my own best interests,” to which the defendant replied, “There’s nothing you can do.” The plaintiff replied, “I’ll find a way.”

65. The aspects of that meeting that Mr Twining asserts indicate malice or an intention to harm seem to be the several comments (apparently made in relation to the second alleged misfeasance, namely, the decision to extend Mr Twining’s probation and transfer him within the Commission to another position) to the effect that the Commission or its staff “can do whatever [they] like” and that there is nothing that Mr Twining can do. To the extent that these comments related directly, and apparently accurately (see [72] below), to the unavailability of a remedy under the Workplace Relations Act 1996 (Cth) in respect of this decision, it is hard to see that they could constitute particulars of malice, although it may be that the tone of Ms Curtis’s comments was more confrontational than necessary. On the other hand, Mr Twining’s own prior reference to the meeting being a “kangaroo court” might provide part of the explanation for the meeting taking on a confrontational tone.

66. Nor does the material in paragraph (19) purport to be relevant to either of the other two alleged misfeasances by Ms Curtis of which Mr Twining complains.

67. In the absence of any reference in paragraph (19) to malice, or any indication that the material in that paragraph is intended as particulars of malice, in respect of any of the three alleged misfeasances, I cannot see how the Master could have made any useful finding about the paragraph, and in particular I cannot see how he could have made the finding sought by Mr Twining, or what the significance of any such finding would have been.

68. I can find no error in the Master’s failure to make a finding, or the particular finding sought by Mr Twining, about the material pleaded in paragraph (19) of the amended statement of claim.

Appeal ground 8—extension of probation

69. Appeal ground 8 is that:

The Master erred in finding that the extension of the appellant’s probation was a benefit to the appellant (Reasons para 25).

70. Mr Twining did not provide any explanation of his claim that, in effect, the probation extension was not a benefit to him.

71. Under the Public Service Act 1999 (Cth), “the engagement of an APS employee ... may be made subject to conditions notified to the employee, including conditions dealing with any of the following matters: (a) probation” (s 22(6)).

72. Section 638 of the Workplace Relations Act (since overtaken by the Fair Work Act 2009 but in force in 2004) excluded certain employees from some of the protections against dismissal provided by that Act. The exclusion applied, among other things, to employees who were:

(c) ... serving a period of probation, if the duration of the period or the maximum duration of the period, as the case may be, is determined in advance and, either:

(i) the period, or the maximum duration, is 3 months or less; or

(ii) the period, or the maximum duration:

(A) is more than 3 months; and

(B) is reasonable, having regard to the nature and circumstances of the employment;

73. Under s 22 of the Public Service Act, a person whose employment is subject to probation does not have the benefit of unconditional employment. Under the Workplace Relations Act, a person who was serving a period of probation was disadvantaged by comparison with other workers who were entitled to broader protection against dismissal. Presumably for that reason, the Workplace Relations Act limited the circumstances in which probation periods of longer than three months continued to attract that disadvantage.

74. To the extent that a person on probation may be more readily dismissed that a person with unconditional employment, it cannot be said that the extension of an employee’s probation period is a benefit to the employee. On the other hand, the alternatives of unconditional employment or an extended probation period do not exhaust the possibilities facing the employee. An employer who is not willing to conclude an employee’s probation period by providing unconditional employment has, as well as the option of extending the probation period, the option of terminating the employee’s employment. Once it is clear that the employer does not propose to offer unconditional employment, then the option of extending the probation period (which gives the employee another chance at obtaining unconditional employment) must be more of a benefit to the employee than terminating the employment.

75. It is not clear that the Master’s parenthetical remark about the extension of the probationary period, “which sounds like a benefit rather than a detriment”, was even a finding, but if it was, I find that the Master was in error in concluding that the extension of the probationary period was a benefit rather than a detriment to Mr Twining. On the other hand, I reject Mr Twining’s claim that the Master should have found that “the respondent’s decision to extend the appellant’s probation ... could, in no sense, have been of benefit to the appellant”. In the absence of either pleadings or evidence about whether the alternative that the Commission would have offered Mr Twining was unconditional employment or immediate termination, I do not consider that any finding could be made about whether the extension of Mr Twining’s probation was a benefit or a detriment to him.

Appeal ground 9—transfer to another position

76. Appeal ground 9 is that:

The Master erred in finding that the transfer to another position had a neutral effect on the appellant’s employment situation (Reasons para 25).

77. Mr Twining says that the Master should not have made this finding in the absence of any pleadings from Ms Curtis, or evidence from either party, to support such a finding. It is apparent that, even if the transfer is to a position at the same level and the same salary, there are various ways in which a transfer to a position at the same level might in fact have a negative effect on an employee’s employment situation. An employee might be worse off, for instance, if the transfer were to a position based at a location that was inconvenient to the employee, if it involved duties that he or she was not equipped to do, if it were to a part of the organisation where promotion opportunities were more limited, or if it involved working with people who had already formed an unfavourable view of the employee.

78. The Master would have been justified, given the state of the pleadings, in finding that the transfer was not pleaded as causing any kind of harm or damage to Mr Twining, but I consider that he did fall into error in making a positive finding that the transfer had a neutral effect on Mr Twining’s employment position.

Appeal grounds 10 and 11—forwarding of emails

79. Appeal grounds 10 and 11 are as follows:

10. The Master erred in finding that the respondent owed the appellant no duty not to forward the emails to a third party without the appellant’s consent (Reasons para 27).

11. The Master erred in finding that the respondent’s act of forwarding the emails to a third party without the appellant’s consent was “patently within power” (Reasons para 27).

80. Mr Twining says that Ms Curtis did owe him a duty not to forward the emails to a third party without his consent “because the respondent owed the appellant such a duty under Section 16 of the Public Service Act and Section 14 of the Privacy Act”.

Public Service Act—whistleblowers

81. Section 16 of the Public Service Act 1999 (Cth) is as follows:

16 Protection for whistleblowers

A person performing functions in or for an Agency must not victimise, or discriminate against, an APS employee because the APS employee has reported breaches (or alleged breaches) of the Code of Conduct to:

(a) the Commissioner or a person authorised for the purposes of this section by the Commissioner; or

(b) the Merit Protection Commissioner or a person authorised for the purposes of this section by the Merit Protection Commissioner;

(c) an Agency Head or a person authorised for the purposes of this section by an Agency Head.

82. Section 16 prohibits victimisation of, or discrimination against, an APS employee because that employee has reported breaches or alleged breaches of the APS Code of Conduct to certain specified office holders, or persons authorised by them. There is an indication in the pleadings (paragraph 27)) that the conduct reported to Ms Curtis (Ms Flynn’s unwelcome practice of addressing the plaintiff as “good boy”) had been raised as a possible breach of the Code of Conduct, but there is nothing in the pleadings to suggest that Mr Twining had reported the alleged breach to any of the specified office holders or to any person authorised to receive such reports by one of those specified office holders. However, even if the report to a relevant person had been pleaded, so as to bring Mr Twining within the protection of s 16, it would be difficult to infer that Ms Curtis owed a duty to Mr Twining not to pass the relevant report on to another person because of the risk that this would expose Mr Twining to victimisation.

83. This is because the purpose of s 16 is to ensure that reports of breaches or alleged breaches of the Code of Conduct are brought to the attention of people whose responsibility it is to deal with them, while attempting to protect the whistleblower from victimisation. A duty not to bring such reports to the attention of the appropriate people because of a risk of victimisation would undermine the aim of ensuring that the relevant reports do come to the attention of the appropriate people; protection against reprisals is intended to be provided by s 16, not by a practice of keeping reports away from people who ought to know about them if there is a perceived risk that someone might be victimised as a result.

Privacy Act

84. Mr Twining also referred in this context to s 14 of the Privacy Act, but he did not explain the basis on which this section could have imposed a duty on Ms Curtis not to forward his email to one of his supervisors.

85. Section 14 of the Privacy Act 1988 (Cth) sets out the Information Privacy Principles. Without considering the question whether these principles applied to Ms Curtis at all, I note that there are 11 principles, all relating to personal information, which is defined in s 6 of the Act as follows:

personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

86. It is certainly arguable that Mr Twining’s preference not to be addressed as “good boy” amounts to personal information about him.

87. Principles 1 to 3 relate to the collection of personal information. “Collect” does not appear to be defined for the purposes of the Principles, but it seems to me to require active obtaining rather than passive and unsolicited receiving, and in the absence of submissions to the contrary I consider that receiving an email volunteered by another person does not amount to collecting that email.

88. Principles 4 to 11 apply to a “record-keeper who has possession or control of a record that contains personal information”. Section 6 of the Act relevantly defines “record” as follows:

record means:

(a) a document; or

(b) a database (however kept); or

(c) a photograph or other pictorial representation of a person;

89. It is arguable that an email held in a person’s computer files is a record and that the person is therefore a record-keeper (although depending on the configuration of any network to which a computer used by a person is linked, it may also be arguable that the record-keeper in relation to emails is not the recipient of the email but the administrator of the network, or of the server where the recipient’s emails are stored).

90. Principles 4 to 11 impose obligations on record-keepers in relation to protection against loss and unauthorised disclosure, providing access to the subject of the record, and ensuring the accuracy of the record. These Principles also limit the use of such records by record-keepers by reference, among other things, to the circumstances in which the information was obtained.

91. However, I can find nothing in any of the Principles that would in terms have imposed a duty on the respondent, even as a record-keeper in relation to the email, not to have passed on the email in the circumstances in which it was in fact passed on. In the absence of submissions from Mr Twining directing me to such provisions, I find that there is nothing in s 14 of the Privacy Act that imposed any particular duty on Ms Curtis in relation to disclosing Mr Twining’s email.

Conclusions

92. Accordingly, I can find no error in the Master’s finding that Ms Curtis owed Mr Twining no duty not to forward the emails to a third party without his consent (appeal ground 10). This also disposes of Mr Twining’s argument in relation to appeal ground 11 which is that, “for the reasons stated in Ground 10 above” the Master erred in finding that Ms Curtis’s act in forwarding the emails to a third party without Mr Twining’s consent was within power.

93. As to Mr Twining’s argument that the Master erred in finding that Ms Curtis’s act was within power because the “the information contained in the emails was staff-in-confidence”, I note that Mr Twining has provided neither submissions nor evidence about the meaning of “staff-in-confidence”. In the absence of any basis on which to consider the significance of Mr Twining’s argument, I point out only that a system in which an employee is prohibited from disclosing staff-in-confidence information about a person to another employee with staffing responsibilities for that person seems unlikely.

94. Accordingly, while the Master’s finding might more appropriately have been expressed as a finding that the pleadings did not disclose any basis on which to find that Ms Curtis’s act of forwarding the e-mails to a third party without Mr Twining’s consent was beyond power, I do not find any material error in the finding that the Master did make.

Appeal ground 12—termination of plaintiff’s employment

95. Appeal ground 12 is that:

The Master erred in failing to find even the possibility of a causal link between the respondent’s alleged acts (comprising the alleged third instance of misfeasance) and the termination of the appellant’s employment.

96. In relation to Ms Curtis’s third alleged misfeasance, the Master does not expressly reject the possibility of a causal link, and does not even note that no particular damage is alleged to flow from Ms Curtis’s act.

97. Mr Twining argues that, in the absence of any pleadings from the respondent or any evidence from either party to negate such a possibility, the Master should have found that there was “a possible causal link” between Ms Curtis’s alleged acts and the termination of Mr Twining’s employment. As with appeal ground 4, the problem is that no such causal link was pleaded; the fact that one event occurs later in time than another event does not of itself establish any kind of causal link, and in the absence of any other possible basis for inferring a causal link, it would have been inappropriate for the Master to have inferred a causal link and unfair to the defendant to require her to plead to such a causal link.

98. There is no error in the Master’s failure, in the absence of any relevant pleadings, to infer a causal link between Ms Curtis’s third alleged misfeasance and the termination of Mr Twining’s employment.

Appeal grounds 13 and 14—vulnerability

99. These appeal grounds are as follows:

Ground 13: The Master erred in finding that the matters pleaded at paragraph 32 of the draft amended statement of claim did not “have any relevance” (Reasons para 10).

Ground 14: The Master erred in finding that paragraphs 33 to 37 of the draft amended statement of claim were included “by reason of an understandable misconception on the part of the plaintiff” with regard to the concept of “vulnerability” (Reasons para 10).

100. They are conveniently dealt with together.

101. The Master found that the matters set out in paragraphs (32) to (37) of the amended statement of claim had to be struck out because they “could not ... have any relevance to causes of action against the defendant based on assertions of misfeasance between June and October 2004”.

102. The matters were set out under the heading “Plaintiff’s vulnerability”. They detailed two separate matters of concern to the appellant:

(a) distress caused to the plaintiff as a result of, and following, the termination of his employment in November 2004, including mental and emotional distress allegedly leading to a suicide attempt (paragraph (32)); and

(b) the progress of the appellant’s proceedings against the respondent’s employer arising out of the same chain of events, including a series of unsuccessful applications to various courts and several instances in which, according to the appellant, various Commonwealth officers acted inappropriately with a view to defeating the plaintiff at various stages in those legal proceedings, or intimidating him in relation to the present proceedings (paragraphs (33) to (37)).

103. The Master noted in his judgment that material appeared to have been included in the amended statement of claim identified as relating to Mr Twining’s vulnerability because, in the context of an action in negligence against Ms Curtis, Mr Twining had been made aware of the difficulties he would face in claiming damages for negligence causing pure economic loss but no physical injury or damage to property. The High Court decision in Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 had been drawn to Mr Twining’s attention, in particular the identification of “vulnerability” as a requirement for a plaintiff to succeed in a pure economic loss claim. In that case, the majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) explained “vulnerability” as follows (at [23]):

Since Caltex Oil, and most notably in Perre v Apand Pty Ltd, the vulnerability of the plaintiff has emerged as an important requirement in cases where a duty of care to avoid economic loss has been held to have been owed. “Vulnerability”, in this context, is not to be understood as meaning only that the plaintiff was likely to suffer damage if reasonable care was not taken. Rather, “vulnerability” is to be understood as a reference to the plaintiff’s inability to protect itself from the consequences of a defendant’s want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant. So, in Perre, the plaintiffs could do nothing to protect themselves from the economic consequences to them of the defendant’s negligence in sowing a crop which caused the quarantining of the plaintiffs’ land. In Hill v Van Erp, the intended beneficiary depended entirely upon the solicitor performing the client’s retainer properly and the beneficiary could do nothing to ensure that this was done. But in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords, the financier could itself have made inquiries about the financial position of the company to which it was to lend money, rather than depend upon the auditor’s certification of the accounts of the company. [references omitted]

104. It is clear that neither the matters set out in paragraph (32) nor the matters set out in paragraphs (33) to (37) of the draft amended statement of claim are relevant to vulnerability in the sense described by the High Court. If vulnerability in this sense is relevant at all in relation to the tort of misfeasance in public office, the question whether Mr Twining could have done anything to protect himself from the consequences of Ms Curtis’s actions is a question which is not even remotely addressed by the contents of paragraphs (32) to (37). I cannot see any basis on which the pleadings in question could be relevant to Mr Twining’s current claim.

105. There was no error in the Master’s finding that the material in paragraph (32) was of no relevance to Mr Twining’s claim. The Master may have been wrong about Mr Twining’s reasons when he said that paragraphs (33) to (37) were included “by reason of an understandable misconception on the part of the plaintiff” about “vulnerability”, but he was not in error in finding that those paragraphs had to be struck out.

Effect of Acts Interpretation Act 1901

106. There is one other matter raised in argument by Mr Twining that needs to be commented on, although it has not turned out to be relevant to my consideration of Mr Twining’s appeal from the Master’s decision.

107. In oral argument, Mr Twining sought to establish that all employees in the Australian Public Service hold public offices for the purposes of the tort of misfeasance in a public office, by referring to s 21 of the Acts Interpretation Act 1901 (Cth), which is as follows:

21 Office etc. means office etc. of the Commonwealth

(1) In any Act, unless the contrary intention appears:

(a) references to any officer or office shall be construed as references to such officer or office in and for the Commonwealth; and

(b) references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth.

(2) In this section:

office includes a position occupied by an APS employee.

officer includes an APS employee.

108. The effect of this provision is, relevantly, that where there is a reference in Commonwealth legislation to an office (which under s 21(2) includes a reference to a position occupied by an APS employee), that reference is, subject to a contrary intention, a reference to an office in and for the Commonwealth. Section 21(2) has a rather odd operation, and the provision may be misconceived; its effect is to allow references in s 21(1) to “offices” to be read as including APS positions. This in turn means that s 21(1) provides that in a Commonwealth Act, a reference to a position occupied by an APS employee is a reference to such a position in and for the Commonwealth—a result which might in any case have been assumed in relation to APS positions, since an APS employee is a person engaged under the Public Service Act 1999 of the Commonwealth (see s 17AA of the Acts Interpretation Act 1901 and s 7 of the Public Service Act 1999).

109. However, it is clear that, whatever else it does, s 21(2) does not operate as Mr Twining claimed, namely to provide that all APS employees are holders of public office for the purposes of the tort of misfeasance in public office. First, s 21(2) expressly applies only for the purposes of s 21, not generally. Secondly, s 21 relates to interpreting Commonwealth legislation; it cannot operate to define the scope of a concept that is part of a common law tort with no statutory basis.

Errors found

110. I have found that, in refusing to give leave for Mr Twining to file his draft amended statement of claim, the Master erred:

(a) in finding that Mr Twining was required to be a member of the public in order to come within the scope of the tort (see [58] above); and

(b) in finding, if he did so find, that the extension of the probationary period was a benefit rather than a detriment to Mr Twining (see [75] above); and

(c) in finding that the transfer of Mr Twining from one position to another had a neutral effect on his employment position (see [78] above).

Effect of errors on amended statement of claim

111. The Master concluded at [28] that his findings had “dispose[d] of the whole of the statement of claim as presently pleaded”. In fact he had not expressly struck out paras (1) to (6), but since they consisted of a summary of the claim, two paragraphs headed “Background” and a paragraph headed “Defendant’s relevant statutory duties”, it is clear that those paragraphs could not stand by themselves once the rest of the statement of claim had gone.

112. All the errors I have found affect the Master’s approach to the second alleged misfeasance complained of by Mr Twining (the extension of Mr Twining’s probation and his transfer to another position). In relation to that conduct of Ms Curtis, the Master said at [24] to [26]:

The assertion in relation to the second instance is in a different category. Here it is clear that the conduct complained of, if it happened, was conduct in the exercise of the defendant’s responsibilities as Director of Human Resources for the Commission. This instance is alleged to have occurred at a time closer to the end of the plaintiff’s employment and the plaintiff might be able to satisfy the Court of a causal link between the conduct and the termination of his employment. He may be able to satisfy the Court that the defendant owed him a duty of procedural fairness to show him the probation report in draft form for comment before finalising it.

The difficulty the plaintiff faces is that he was not a member of the public. He was an employee of the Commission, and the defendant was his superior. As Director of Human Resources she was undoubtedly in a position to influence the continuation or termination of his employment. But it is clear from the statement of claim that she did not have the power to terminate his employment. The plaintiff makes it clear that his employment was terminated by the Commission as a result of a recommendation made by his line manager or director, Mr Ross Davidson. What the defendant is said to have done was to have, as part of the extension of his probationary period, transferred him to another position within the Commission. It is not asserted that this change of position led to any reduction in earnings or other economic loss. Thus, although the plaintiff complains about the content of the probation report, the second instance seems to amount to no more than an authorisation of the extension of his probationary period (which sounds like a benefit rather than a detriment) and a transfer to another position, which sounds neutral.

I cannot see that the second instance as pleaded is capable of forming the basis for a finding, on the part of the defendant, of abuse of the power of her office, even if it is found that, in her position as Director of Human Resources, she owed a duty to the plaintiff capable of giving rise to an action for misfeasance in public office. Further, I cannot see that the second instance as pleaded is capable of giving rise to any finding of damage, an essential element of the tort.

113. Once the requirement for Mr Twining to show he is a member of the public is removed, and the Master’s findings about the impact of the extension of probation and the transfer to a different position are overturned, two things become apparent. One is that the relevant part of the amended statement of claim must still be struck out, because there is still nothing in the pleading alleging a link between the actions of Ms Curtis and damage suffered by Mr Twining. The second is that this particular gap in the pleadings may be able to be overcome in further revised pleadings.

114. However, this is not the only problem that Mr Twining faces in any further attempt to plead this action. As already mentioned at [14] to [20] above, there is nothing relevantly pleaded in the amended statement of claim to the effect that Ms Curtis was a public officer or that in her dealings with Mr Twining she was performing public duties. Nor is there any meaningful pleading of malice or intention to cause harm on Ms Curtis’s part. Noting the elements of the tort as described in Mengel at [48] above, unless the deficiencies relating to the holding of a public office, the existence of a public duty, the presence of malice and the causing of damage can be remedied, a further amended statement of claim may be no more sustainable than the current one.

Amendments of draft amended statement of claim

115. On the first day set down for hearing of this matter, and at a further hearing on 14 October 2008, Mr Twining provided further amendments of his statement of claim.

116. The draft further amended statement of claim is not directly relevant to my determination of the appeal from the Master’s decision, and nor has it been the subject of argument. Accordingly, I do not propose to express any views on whether the further amendments have cured any particular defects in the earlier versions, except to say that I do not consider that the material provided to me so far would justify me in giving Mr Twining leave to file that document. If Mr Twining wishes to seek that leave from the Court, he should seek it in relation to a draft amended statement of claim that has been revised to take account of the findings and other comments I have made in reviewing the Master’s decision.

Written submissions

117. On several occasions in the course of hearings on this matter, the parties exchanged written submissions. Mr Twining’s submissions did not confine themselves to the matters before me, namely whether there were errors in the Master’s decision, but to a range of other matters, some of which were red herrings and some of which might be relevant in any further revision of the statement of claim or in any trial of this matter. However, the inclusion of irrelevant or surplus material in submissions, while generally inefficient for everyone concerned, is understandable when a self-represented litigant is involved (although it is by no means confined to such cases).

118. However, Mr Twining’s written submissions also contained absolutely inappropriate personal abuse directed at counsel for Ms Curtis, and hyperbole, neither of which enhanced the quality of his arguments. For instance, Mr Twining said of Ms Curtis’s “boast” that there was nothing Mr Twining could do about the extension of his probation and his transfer, dealt with at [65] above, that “[in] the history of the tort there has been, perhaps, no more blatant an expression of malice”. Both this sort of exaggeration, and the personal abuse mentioned above, inevitably undermine the reliance that might otherwise be placed on Mr Twining’s more measured submissions and assertions.

Future proceedings

119. I would endorse the remarks of both Crispin J who dealt with this matter in 2007, and the Master in the decision under appeal, that Mr Twining would be well advised to seek legal advice before pursuing this claim further, and I would add that personal abuse of opposing parties or their legal representatives has no place in legal processes in this jurisdiction, and provides no benefit at all to parties who engage in it. Apart from anything else, it tends to indicate a party who is aware that his or her legal arguments are weak rather than the reverse.

Orders

120. The Master noted the uncertainty about whether he should deal with the matter before him as an application by Ms Curtis to strike out the amended statement of claim or an application by Mr Twining for leave to deliver the amended statement of claim, but the order he made was to strike out the amended statement of claim and to note that Mr Twining would require leave to file a further amended statement of claim.

121. The orders accordingly are as follows:

(a) The appeal against the Master’s decision is upheld in part.

(b) The amended statement of claim be struck out, but for the reasons given by the Master as varied by this judgment.

(c) Mr Twining will require leave to file a further amended statement of claim.

I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 2 September 2009

Counsel for the applicant: Self-represented

Counsel for the respondent: Mr R L Crowe SC

Solicitor for the respondent: Australian Government Solicitor

Dates of hearing: 25 February, 18 March, 1 May, 19 August, 14 October 2008

Dates of written submissions: 17 March, 8 April, 22 April, 13 June, 1, 15 September 2008

Date of judgment: 2 September 2009