Payne JA at [1] White JA at [64] Simpson AJA at [131]
Decision:
(1) Grant leave to appeal;
(2) Appeal dismissed against the second respondent with costs;
(3) Appeal allowed against the first and third respondents;
(4) Set aside orders 1 and 2 made by the primary judge on 3 July 2019 and in lieu thereof make the following orders:
(a) Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), summarily dismiss the proceedings against the second respondent;
(b) Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), summarily dismiss the proceedings against the first and third respondents insofar as they allege malicious prosecution;
(c) Otherwise dismiss the respondents’ notice of motion filed on 11 February 2019;
(5) Order that the first and third respondents pay the appellant’s costs of the application for leave to appeal and the appeal;
(6) Remit the question of costs of the hearing of the respondents’ notice of motion filed on 11 February 2019 to the Common Law Division.
Catchwords:
TORT – misfeasance in public office – elements – identification of public power or duty – where police officer involved in trial laughed and rolled eyes during applicant’s trial – where applicant alleges her conduct amounted to misfeasance in public office – whether a purported exercise of a public power or duty identified – whether a capacity to act as an incident of a public office an exercise of public power
TORT – summary disposal – whether statement of claim and particulars disclosed cause of action – whether applicant’s claim for misfeasance in public office was hopeless and doomed to fail – Whether limits of the tort of misfeasance in public office so settled that applicant’s claim is doomed to fail
[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.
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AGLC
Ea v Diaconu [2020] NSWCA 127
Case
[2020] NSWCA 127
Decision Date
CaseChat Overview and Summary
The appeal concerned a claim of misfeasance in public office brought by the applicant, Ea, against police officers, including the first and third respondents. The applicant alleged that the conduct of a police officer during her trial, specifically laughing and rolling her eyes, constituted misfeasance in public office. The primary judge had summarily dismissed the applicant's statement of claim.
The central legal issues before the Court of Appeal were whether the applicant's statement of claim and particulars disclosed a cause of action for misfeasance in public office, and whether the claim was so hopeless or doomed to fail that it ought to be summarily dismissed. This involved determining whether the alleged conduct of the police officer amounted to a purported exercise of a public power or duty, or an act done in the capacity incidental to a public office.
The Court of Appeal found that the applicant's allegations, as pleaded, did not disclose a cause of action for misfeasance in public office. The court reasoned that the conduct described, while potentially unprofessional, did not constitute an exercise of a public power or duty in the manner required for the tort. The court also considered the claim for malicious prosecution, finding that it was also unsustainable.
Consequently, the Court of Appeal granted leave to appeal, dismissed the appeal against the second respondent, and allowed the appeal against the first and third respondents. The court set aside the primary judge's orders and summarily dismissed the proceedings against the second respondent. The proceedings against the first and third respondents were summarily dismissed in so far as they alleged malicious prosecution, but otherwise, the respondents' notice of motion was dismissed. The court ordered the first and third respondents to pay the appellant's costs of the application for leave to appeal and the appeal, and remitted the question of costs of the hearing of the respondents' notice of motion to the Common Law Division.
Orders
Orders of the court
(1) Grant leave to appeal;
(2) Appeal dismissed against the second respondent with costs;
(3) Appeal allowed against the first and third respondents;
(4) Set aside orders 1 and 2 made by the primary judge on 3 July 2019 and in lieu thereof make the following orders:
(a) Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), summarily dismiss the proceedings against the second respondent;
(b) Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), summarily dismiss the proceedings against the first and third respondents insofar as they allege malicious prosecution;
(c) Otherwise dismiss the respondents’ notice of motion filed on 11 February 2019;
(5) Order that the first and third respondents pay the appellant’s costs of the application for leave to appeal and the appeal;
(6) Remit the question of costs of the hearing of the respondents’ notice of motion filed on 11 February 2019 to the Common Law Division.