In Nyoni v Shire of Kellerberrin, handed down on 13 April 2017, a Full Court of the Federal Court considered the elements and scope of the tort of misfeasance in public office. In its enunciation of the elements of the tort, the majority (North and Rares JJ) appears to have significantly expanded the scope of the tort in Australia and extended its operation into a range of conduct by public office holders that might previously have been thought to fall solely within the province of the torts of defamation and injurious falsehood. The judgment may therefore prove to be a significant one for public office holders, as well as for State and local governments. If an application is made for special leave to appeal, the case may also prove to be a useful vehicle for an authoritative statement by the High Court of the elements of the tort of misfeasance in public office in Australia.
The relevant facts are set out clearly in the dissenting judgment of Dowsett J at paragraphs  to . Briefly, the applicant was the operator of a pharmacy in Kellerberrin, a small town some 200 km east of Perth. For some years, the respondent shire council and its officers had expressed dissatisfaction with respect to the manner in which the applicant operated the pharmacy. In October of 2010, an electrical contractor was instructed to disconnect the electricity supply to the applicant’s home. Owing to a miscommunication, the contractor disconnected the electricity supply to both the applicant’s home and his pharmacy. The Chief Executive Officer of the respondent shire (the CEO) advised an officer of the former Pharmaceutical Council of Western Australia (the Council) of the impending disconnection of the pharmacy’s electricity supply; a further communication confirming that the electricity supply had been disconnected was then sent to the Council by the electrical contractor from the respondent shire’s offices. The primary judge found that the intention of the CEO in making these communications to the Council was ‘to persuade the Pharmaceutical Council to consider taking disciplinary action against’ the applicant. Further, the primary judge found that the CEO did not advise the Council that the supply of electricity to the applicant’s pharmacy had been disconnected through no fault of the applicant.
In concluding that these facts were sufficient to establish the commission by the CEO of the tort of misfeasance in public office, the majority first set out the three elements of the tort:
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).
This much was uncontroversial. The real question for the Court to determine was whether anything the CEO had done could be said to have constituted misuse of an office or power. In this regard, nothing in the facts found by the primary judge indicated that the CEO had any power beyond that of an ordinary member of the community to make a complaint to the Council regarding the operation of a pharmacy. Notwithstanding this, the majority considered that the communications from the CEO to the Council constituted an ‘official complaint’ and that this was sufficient to amount to the use of an office or power for the purposes of the tort. The CEO’s purpose in making the complaint and his failure to advise the Council that the disconnection of the pharmacy’s electricity supply had not been caused by any fault of the applicant were considered by the majority to be sufficient to establish misuse of that office or power.
In dissent, Dowsett J expressed the view that the word ‘power’ in the first element of the tort is used ‘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.’ As there was nothing to indicate that the CEO had any specific statutory or common law power to make complaints to the Council, his Honour did not consider that any of the facts found by the primary judge could justify the conclusion that the CEO had abused or misused an office or power.
The broad approach taken by the majority to the application of the first element of the tort of misfeasance in public office has the potential to expand the scope of the tort beyond its traditional boundaries. On the approach taken by the majority, a range of conduct that involves the use of a title attaching to a public office, but that is not connected with the exercise or purported exercise of a specific power to affect the rights or interests of a member of the public, may give rise to liability in misfeasance in public office. This broad approach does not appear to be entirely consistent with such cases as Cannon v Tahche and Leerdam v Noori, in which State appellate courts have insisted that the identification of some ‘relevant power’ attaching to the defendant’s office is a necessary precondition for establishing liability in misfeasance in public office. If indeed there is an inconsistency between the approach adopted by Full Court and the law as it has been enunciated by State appellate courts, this inconsistency will ultimately have to be resolved by the High Court. Until then, parties seeking to establish liability in the tort of misfeasance in public office may find that they are more likely to be successful in a federal court than in a State court.