Misfeasance in public office – Elements of the tort – Must be deliberate and malicious abuse of power by public officer – Wrongdoer personally liable – Whether tort confined to the exercise of executive or administrative power – Meaning of ‘public office’ for purposes of tort – Prosecutor’s duty of disclosure – Duty to act fairly – Whether duty continues post-trial – Duty owed to court, not accused - Prosecutor and instructing solicitor not holders of public office for the purposes of the tort – No cause of action for misfeasance in public office against prosecutor.
---
APPEARANCES:
Counsel
Solicitors
For the Appellants
Mr. O.P. Holdenson Q.C. and Mr. M.F. Wheelahan
Phillips Fox
For the Director of Public Prosecutions (Intervening)
For the Respondents
Mrs. S.M. Crennan Q.C. and Ms. K. Judd
Mr. D.F. Hore-Lacy S.C. and Mr. J.P. Gorton
Ms. K. Robertson, Solicitor for Public Prosecutions
Law Partners
WINNEKE, P., CHARLES, J.A., CHERNOV, J.A.:
Angela Cannon and Mark Rochford (whom we will call “the first applicant” and “the second applicant” respectively, or collectively, “the applicants”) are the fifth and sixth defendants in the principal proceeding. They seek leave to appeal against certain interlocutory decisions of a judge of the Supreme Court made on 8 March 2002 to which reference will be made later, and if leave is granted, they propose to prosecute their appeal. The application is supported by the Director of Public Prosecutions (“the Director”) who, on 24 August 2001, was granted leave to intervene in the principal proceeding and who also applies to this Court for leave. The respondents to the applications are Robert Tahche, the plaintiff in the principal proceeding, who is the first respondent (and to whom we will continue to refer as “the plaintiff”), and a number of the applicants’ co-defendants in the action. At the hearing before us, the only respondent who appeared was the plaintiff who was represented by Mr. Hore-Lacy and Mr. J. Gorton.
As will be explained more fully later, the plaintiff has brought the proceeding against the applicants and a number of others, most of whom are police officers, claiming damages in respect of loss alleged to flow from his conviction on 30 March 1992 for the alleged indecent assault and rape with aggravating circumstances of Sammia Abboud, who is a cousin of the plaintiff and the first defendant in the principal proceeding. We will refer to her as “the first defendant”. The second applicant is a barrister who appeared as prosecutor at the plaintiff’s trial and the first applicant, a solicitor, was his instructor. The plaintiff claims that the applicants are liable to him for misfeasance in a public office (“the tort”) in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Cannon v Tahche
Sign in free to access the full text
Details
AGLC
Cannon v Tahche [2002] VSCA 84
Case
[2002] VSCA 84
Decision Date
CaseChat Overview and Summary
Cannon was the successful applicant in an adoption proceeding against Tahche, the natural mother of a child. Following the adoption, Cannon commenced defamation proceedings against Tahche. During the defamation proceeding, Tahche raised a defence of misfeasance in public office against Cannon, the prosecutor, and the instructing solicitor for Cannon. Tahche claimed that the prosecutor and the solicitor were public officers who had deliberately and maliciously abused their powers by not disclosing certain material to the court, thereby depriving her of a fair trial. Tahche argued that the prosecutor and the solicitor were holders of a public office for the purposes of the tort of misfeasance in public office and were therefore personally liable for their conduct. The court was required to determine whether the prosecutor and the solicitor were holders of a public office for the purposes of the tort of misfeasance in public office and whether they had deliberately and maliciously abused their powers by not disclosing certain material to the court, thereby depriving Tahche of a fair trial.
The court found that the prosecutor and the solicitor were not holders of a public office for the purposes of the tort of misfeasance in public office. The court held that the tort was confined to the exercise of executive or administrative power and did not extend to the exercise of judicial power. The court also held that the prosecutor and the solicitor did not have a duty to act fairly towards Tahche and that their duty was owed to the court, not the accused. The court further held that the prosecutor's duty of disclosure was a duty to the court and not the accused, and that the duty did not continue post-trial. The court held that the prosecutor and the solicitor had not deliberately and maliciously abused their powers by not disclosing certain material to the court, and therefore, there was no cause of action for misfeasance in public office against them.
The court dismissed Tahche's claim for misfeasance in public office against the prosecutor and the solicitor. The court held that the prosecutor and the solicitor were not holders of a public office for the purposes of the tort of misfeasance in public office and that they had not deliberately and maliciously abused their powers by not disclosing certain material to the court. The court held that the prosecutor's duty of disclosure was a duty to the court and not the accused, and that the duty did not continue post-trial. The court held that there was no cause of action for misfeasance in public office against the prosecutor and the solicitor.