Neilson v City of Swan
[2003] WASC 20 (S)
NEILSON & ANOR -v- CITY OF SWAN [2003] WASC 20 (S)
| Link to Appeal : | [2006] WASCA 94 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 20 (S) | |
| 12/02/2003 | |||
| Case No: | CIV:1341/2002 | 26 NOVEMBER 2002, 24 JANUARY 2005 | |
| Coram: | TEMPLEMAN J | 12/02/03 | |
| 24/03/05 | |||
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application successful | ||
| B | |||
| PDF Version |
| Parties: | MARK JAMES NEILSON LISA JEAN LOGGIE CITY OF SWAN |
Catchwords: | Practice and procedure Amendments to statement of claim Defendants application to disallow amendments Whether amendments go to cause of action Whether a cause of action present |
Legislation: | Nil |
Case References: | Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151 Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 Dunlop v Woollahra Municipal Council [1982] AC 158 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Murcia v City of Nedlands (1999) 22 WAR 1 Neilson & Anor v City of Swan [2003] WASC 20 Northern Territory of Australia v Mengel (1996) 185 CLR 307 Three Rivers District Council v Bank of England [2000] 3 All ER 1 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 24 MARCH 2005 FILE NO/S : CIV 1341 of 2002 BETWEEN : MARK JAMES NEILSON
- LISA JEAN LOGGIE
Plaintiffs
AND
CITY OF SWAN
Defendant
Catchwords:
Practice and procedure - Amendments to statement of claim - Defendants application to disallow amendments - Whether amendments go to cause of action - Whether a cause of action present
Legislation:
Nil
(Page 2)
Result:
Application successful
Category: B
Representation:
Counsel:
Plaintiffs : In person
Defendant : Mr J A Thomson
Solicitors:
Plaintiffs : In person
Defendant : Mullins Handcock
Case(s) referred to in judgment(s):
Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151
Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567
Dunlop v Woollahra Municipal Council [1982] AC 158
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Murcia v City of Nedlands (1999) 22 WAR 1
Neilson & Anor v City of Swan [2003] WASC 20
Northern Territory of Australia v Mengel (1996) 185 CLR 307
Three Rivers District Council v Bank of England [2000] 3 All ER 1
Case(s) also cited:
Nil
(Page 3)
1 TEMPLEMAN J: The background to this matter is set out in my reasons in Neilson & Anor v City of Swan [2003] WASC 20. I shall continue to use the same terminology.
2 In those reasons, I dealt with an application by the defendant to disallow parts of the plaintiffs' proposed statement of claim dated 19 August 2002. The defendant was largely successful. However, I gave the plaintiffs general leave to amend. This they did. The result was a "Memorandum of Proposed Revised Statement of Claim" dated 19 May 2003.
3 That memorandum was the subject of further objections by the defendant. I heard the application on 25 October 2004, when I made orders disallowing parts of the document: again with liberty to replead.
4 The plaintiffs then produced a minute of Proposed Revised Statement of Claim dated 19 January 2005. I shall refer to it as "the Statement of Claim".
5 On 24 January, I heard a further application by the defendant to disallow parts of the Statement of Claim. I shall deal with the matter by reference to the relevant paragraph numbers.
Paragraph 7(2)(b)
6 The plaintiffs contend that the defendant acted unlawfully in approving ODP106. The plaintiffs contend further that the defendant denied them natural justice when so doing. One of the bases for that contention is that:
"The City of Swan had regard to irrelevant considerations in that it approved ODP106 on grounds that included economic development of Gidgegannup, whereas this was not a proper planning consideration for land in the Landscape zone or in the Landscaped 3 precinct of the GRS."
- In essence, the requirements of natural justice are that there should be a proper hearing of the matter and an unbiased decision-maker.
7 The taking into account of irrelevant considerations is a ground on which an administrative decision may be reviewed. However, that is not what is sought in the present case: and the taking into account of irrelevant considerations has no bearing on the question of natural justice.
(Page 4)
8 In my view, therefore, par 7(2)(b) is embarrassing in the sense that it makes no contribution to the allegation of a denial of natural justice. It should therefore be disallowed.
Paragraph 7(2)(c)(iii)
9 In support of their allegation that the defendant breached its obligation to allow them an unbiased decision-maker, the plaintiffs contend that:
"The planning staff responsible for advising or informing the decision-making body had a biased view of the Plaintiffs and their views, and this affected the advice provided to the Council on ODP106 …. Discussions between the Plaintiffs and the Department of Local Government and Ombudsman's Office showed that the City of Swan spread defamatory comments about the Plaintiffs to these organisations as part of a concerted strategy to undermine the Plaintiffs, which it regarded as its opponents. Mr Richardson advised Ms Elizabeth Horne of the Ombudsman's Office that the Plaintiff Neilson had maliciously defamed him with lies, as mentioned to the Plaintiff Neilson by Ms Horne in a telephone conversation in about October 1998. Mr Richardson, Mr Lumsden, Ms Pike and Mr Gregorini (the Mayor and Chairperson of the decision-making Committee) also advised Mr Daryl Forrest of the Department of Local Government that the Plaintiff Neilson had maliciously defamed Mr Richardson with lies."
- The plaintiffs then provide particulars of the "defamation allegation". They are in the following terms:
"In about October 2004 Mr Richardson advised Ms Horne and Mr Forrest that the Plaintiff Neilson had made statements that were complete fabrications, that the Plaintiff Neilson's deputation of 12 August 1998 was a tirade, and that the Plaintiff Neilson made scurrilous and defamatory attacks on the professional integrity of Mr Richardson and that the Plaintiff Neilson had behaved in a rude and demanding manner with Mr Richardson and other staff. These words were uttered maliciously as Mr Richardson bore malice against the Plaintiff Neilson for showing up the many planning errors made by Mr Richardson and his staff in considering a trout fishing proposal in August 1998 and Mr Richardson was seeking to
(Page 5)
- divert the attention of the Ombudsman from properly investigating a site visit to Lot 504 by Mr Stirk on 8 July 1998."
10 These particulars relate only to statements said to have been made by Mr Richardson. They contain no reference to Mr Lumsden, Ms Pike and Mr Gregorini. In the absence of any particulars relating to those persons, references to them in par 7(2)(c)(iii) should be deleted.
11 I note that the plaintiffs do not pursue the defamation allegations as a separate tort: they rely on defamation only in support of their allegations of bias.
Paragraph 10
12 Paragraph 10 of the Statement of Claim falls within a section under the general heading of "Negligence".
13 Paragraph 10(1) is as follows:
"The City of Swan:
(1) owed a duty of care to the Plaintiffs in that it entered upon the exercise of its statutory powers with respect to controlling development works on Lot 504 which imported a common law duty to take care which is to be discharged by the continuation or additional exercise of those powers."
14 Pausing there, the existence and extent of a duty of care must depend on the nature of the statutory powers in question. In other words, before it can be said that a duty of care existed, it is necessary to identify the statutory powers on which the plaintiffs rely in order to determine the extent of any obligation owed by the defendant to the plaintiffs. The plaintiffs identify the statutory powers in the particulars of par 10(1), as follows:
"On 17 July 1998 the City of Swan conducted a site visit and requested the owners of Lot 504 to cease works that were occurring without development approval.
Section 1.3 of TPS9 states that the Authority responsible for enforcing the observance of the scheme is the Council of the City of Swan."
(Page 6)
15 The purpose of the first sentence under the above particulars is not entirely clear. I assume it is intended to demonstrate that the defendant did exercise its statutory powers before ODP106 was approved. The second sentence, identifies s 1.3 of TPS9 as the source of the defendant's statutory powers.
16 Pausing again, I can see an argument that because the defendant had the power to control development, it owed a duty of care to the plaintiffs to exercise that power so as to ensure that unlawful development did not take place, to the detriment of those who might be affected by it.
17 Paragraph 10(2) of the statement of claim goes on to allege a breach of the duty of care. It is alleged that the defendant:
"(2) breached its duty of care in that
(a) It failed to control development work occurring on Lot 504 in June 2000 in that it failed to act on a report to it by the Plaintiffs that clearing was occurring on Lot 504 in the areas indicated as being for intensive chalet development in ODP106
(b) It failed to control development work occurring on Lot 504 in November 2001 in that it failed to act on reports by the Plaintiffs that a 2m high chain-mesh boundary fence was being constructed around the western part of Lot 504 and on the boundary of Lot 341
(c) It failed to control development work occurring on Lot 504 in that in September to October 2004 the City of Swan failed to stop construction of a vary large dam on Lot 504 facing Lot 341"
(Page 7)
19 Paragraph 10 does not, therefore, disclose a cause of action. It should be disallowed.
20 The defendant raises a more fundamental objection to par 10: that it does not disclose any cause of action known to law. Although on the view I take, this objection does not need to be considered. I will deal with it out of deference to the arguments presented to me.
21 The defendant's submission is based on the fact that, by s 7(3) of the Town Planning and Development Act 1928, a town planning scheme, when approved by the relevant Minister and published in the Government Gazette, "shall have full force and effect as if it were enacted by this Act". TPS9 is such a scheme.
22 ODP106 was approved by the defendant pursuant to TPS9. Thus, the defendant submits, the power to approve ODP106 was effectively legislative in character.
23 The defendant then points to the statement in the judgment of the Full Court of the Federal Court in Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 at 595:
" … In no case in Australia has a Minister of State or a public authority been held liable for the negligent proclamation of a policy or the making of an invalid rule or regulation or the issue of a plan for which statute makes provision."
24 The Court, which was sitting on an appeal from a judgment of Gummow J, expressly approved his Honour's observation in Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151 at 175 that:
"Whatever otherwise may be the scope of the 'administrative tort' it cannot have the reach necessary to provide any remedy in a case such as the present where the alleged negligence is in relation to an act of law-making."
25 In Bienke's case, it was alleged that a statutory scheme for the management of prawn fishing in a particular area was invalid. The applicants contended also that if the invalidity was made out, the applicants (who were all involved in commercial fishing activities) could recover damages in negligence because the tort of negligence included "negligently invalid government activity". This was said to be an administrative tort.
(Page 8)
26 Gummow J's decision that the management plan was not invalid was upheld by the Full Court. The Court went on to say that even the management plan had been invalid, the Minister would not have been liable in negligence. In reaching that conclusion, the Court had regard to the well established line of authority in which a distinction is drawn between operational decisions made by a statutory authority and discretionary or policy decisions. The management plan fell within the latter category: hence the observation made by the Court which I have set out above.
27 In my view, it is arguable that the present case is distinguishable from Bienke's case. That is because the approval of ODP106 did not involve purely discretionary considerations. An ODP could not have been approved unless it satisfied the criteria prescribed by TPS9.
28 In these circumstances, I can see the argument that if the defendant knew or ought to have known that the approval of ODP106 was beyond power, the plaintiffs might have a claim in negligence. Indeed, the Full Court said precisely that in Bienke's case at page 595:
"Of course, there may be liability if the wrongful exercise of authority was carried out in the knowledge that it was beyond power: Bourgoin SA; Farrington v Thomson [1959] VR 286."
29 The essential element of knowledge (and the facts and matters relied on to prove knowledge) are lacking in par 10 of the statement of claim. However, if the only objection to par 10 was that it was based on an administrative tort, I would not have disallowed it.
30 The final limb of par 10 contains an allegation that the breach of the duty of care caused damage in that the unlawful site works on Lot 504 have:
"(a) Damaged the visual amenity of Lot 341.
(b) Reduced the value of Lot 341."
31 The defendant submits, and I accept, that (a) above is embarrassing in any event, in the sense that it is not a separately compensable head of damage. I can see the argument that the value of Lot 341 might have been reduced because it no longer enjoys the views or outlook it did previously. However, that is a matter which would be taken into account in a valuation exercise.
(Page 9)
Paragraph 11
32 Paragraph 11 is in the following terms:
"11 The City of Swan:
(1) owed a duty of care to the Plaintiffs in that it specifically undertook in a letter dated 14 January 1999 to keep the Plaintiffs informed of progress with the consideration of ODP106, prior to the approval of ODP106, and so assumed responsibility to keep the Plaintiffs informed and there was a special relationship between the Plaintiffs and the City of Swan created by the control that the City of Swan had over the planning process,
(2) breached its duty of care in that the City of Swan failed to alert the Plaintiffs until 3 pm on 9 February 1999, the day before the Council of the City of Swan approved ODP106, that ODP106 was being considered by the Council of the City of Swan, and so deprived the Plaintiffs of the opportunity to seek further independent legal advice on the proposed ODP106 and the Council's evaluation of it or to put their views directly to individual Councillors by lobbying Councillors and so contributed to the City of Swan approving ODP106 without appropriate consideration of the Plaintiffs' interests
(3) and the breach of duty of care:
(a) resulted in approval of ODP106 for Lot 504 that will affect the amenity of Lot 341 if it proceeds
(b) has blighted the value of Lot 341 because of the uncertainty created as to whether ODP106 will proceed"
(Page 10)
- must be assumed to be true when considering whether a pleading discloses a cause of action.
34 It may be accepted also, on the same basis, that the defendant failed to alert the plaintiffs, until the day before the relevant meeting, that the Council was to consider ODP106.
35 However, it is not alleged that the defendant's failure resulted from any negligence. Even if such an allegation was made, it would be necessary for it to be supported by full particulars of the facts and matters relied upon as constituting negligence.
36 Further, even if the defendant's failure to inform the plaintiffs was negligent, so as to amount to a breach of its duty of care, it cannot simply be asserted that the breach resulted in the approval of ODP106 and the loss claimed.
37 In order to show that the breach did have the consequences alleged, it would be necessary for the plaintiffs to prove that if they had been given reasonable notice of the Council meeting, they would have been able to take some action which would have resulted in approval being declined.
38 Again, it would not be sufficient simply to make those assertions: it would be necessary to provide full particulars of the facts and matters relied on.
39 In my view, therefore, par 11 does not disclose a cause of action. It should be disallowed.
Paragraph 12
40 Paragraph 12 of the statement of claim is in the following terms:
"12 The City of Swan:
(1) owed a duty of care in that it gave a specific undertaking in a letter from the Chief Executive officer dated 1 February 1999 to the Plaintiffs that it would assess future submissions by the Plaintiffs on their merits.
(2) breached its duty of care in that it proceeded to assess the Plaintiffs' submission on ODP106 in a biased manner as set out in paragraph 7(2)(c)(vii) of this Statement of Claim
(Page 11)
- (3) and the breach of the duty of care:
(a) resulted in approval of ODP106 for Lot 504 that will affect the amenity of Lot 341 if it proceeds
(b) has blighted the value of Lot 341 because of the uncertainty created as to whether ODP106 will proceed
(c) damaged the Plaintiffs' trust in government processes and sense of community
(d) contributed to the psychiatric shock suffered by the Plaintiff Loggie
Particulars of foreseeability of the Plaintiff Loggie's Psychiatric Shock
The Plaintiff Neilson withdrew his complaint to the Ombudsman in December 1998 about the City of Swan because of stress being experienced by himself and the Plaintiff Loggie and he told the Ombudsman this, and this information was passed on to the City of Swan in December 1998.
Councillor Burgess knew that the Plaintiff Loggie had been so distressed by the threatened defamation action of 18 August 1998 that she was seriously considering going to Canada at that time and she told him this in a telephone conversation in 1998 and the duress that the Plaintiff Loggie was experiencing because of the City of Swan's actions was further communicated to the City of Swan by the Department of Local Government in December 1998.
The possibility of the Plaintiff Loggie suffering duress was acknowledged by the
(Page 12)
- Chief Executive Officer of the City of Swan in his apology to the Plaintiff Loggie dated 1 February 1999.
- The Plaintiff Neilson advised the City of Swan he was withdrawing from a writ of certiorari in February 1990 (that sought to overturn the approval of ODP106) because of family stress and advised the secretary of the Chief Executive Officer of the City of Swan that the Plaintiff Loggie was suffering psychiatric shock."
41 Again, it may be accepted for present purposes that the defendant owed the plaintiffs a duty of care arising from the undertaking referred to in par 12(1) above. However, par 12 suffers from the same defect as par 11: it is not alleged that breach of the duty of care resulted from any negligence on the part of the defendant.
42 Even if that defect were remedied, par 12 contains no basis for the conclusion that the breach of the duty of care contributed to Dr Loggie's "psychiatric shock".
43 It is not clear precisely what is meant by the term "psychiatric shock". However, the particulars of foreseeability appear to relate only to stress. I regard the references to "duress" in the second and third paragraphs of the particulars as being a reference to some form of stress.
44 As Gummow and Hayne JJ said in their joint judgment in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 546:
" … The coexistence of knowledge of a risk of harm and power to avert or to minimise that harm does not, without more, give rise to a duty of care at common law. The totality of the relationship between the parties, not merely the foresight and capacity to act on the part of one of them, is the proper basis upon which a duty of care may be recognised."
45 Here, all that is pleaded is that the defendant had knowledge of a risk of harm to Dr Loggie. I exclude from consideration the final paragraph under the particulars because it appears to relate to information given by Mr Neilson to the defendant after the approval of ODP106. I take the reference to February 1990 to be an error: it should, I think, be February
(Page 13)
- 1999 because it refers to a communication between Mr Neilson and the defendant after ODP106 had been approved.
46 I make the same observations in relation to the alleged consequences of the breach of the duty of care, and in particular, the alleged effect of ODP106 on the amenity of Lot 341. Further, I do not regard par 12(3)(c) as identifying any compensable damage. That is to say, I can see no basis on which it would be possible to assess compensation for the plaintiffs' damaged "trust in government processes and sense of community".
47 For the reasons given above, I consider that par 12 is defective. It does not disclose a cause of action. It should be disallowed.
Paragraphs 13, 14 and 15
48 In each of these paragraphs it is alleged that individual officers of the defendant misfeased in their respective offices.
49 In par 13, Mr Martin Richardson is identified as the defendant's Principal Planner and subsequently Executive Manager, Strategic Community Planning Services.
50 It is then alleged that on various occasions, Mr Richardson "performed an invalid exercise of power or purported exercise of power". I summarise each of the allegations as follows:
(a) it is alleged that Mr Richardson "failed to protect the plaintiffs' rights to due process and to provide access to all information, necessary to properly perform functions";
(b) it is alleged that having informed the plaintiffs that ODP106 could not be approved in the form in which it was advertised for public comment, and having told them that they would be kept informed of progress, the plaintiffs were notified only on the day before the Council met to consider ODP106, that the meeting would then be taking place;
(c) it is alleged that Mr Richardson "failed to behave honestly or communicate accurately" in that he gave false information at a Council meeting to the effect that he had sought to telephone Mr Neilson at his work before 9 February 1999 and said that he could not contact him. The plaintiffs contend that this statement was false. They draw that inference from the fact that at the material time,
(Page 14)
- no messages were left by Mr Richardson with either of the two secretaries who take messages for Mr Neilson;
- (d) it is alleged that Mr Richardson did not provide the defendant with all the information necessary to enable it to perform its functions properly. It is said that Mr Richardson provided the defendant's Council with "a biased and deficient assessment of the Plaintiffs' submission on ODP106" and that he wrote a report on ODP106 to the defendant's Council: a report that was "not in accordance with various requirements of TPS9".
(e) it is said that Mr Richardson was the senior planning officer responsible for overseeing the defendant's planning processes and that he failed to correct "the large numbers of breaches of TPS9 and denial to the Plaintiffs of natural justice, as set out in paragraph 7 of this Statement of Claim."
51 It is then alleged that the large number of "planning errors and procedural irregularities" set out in par 7, show that Mr Richardson acted with "reckless disregard for the plaintiffs' interests and his lack of power".
52 In my reasons in [2003] WASC 20, at [52] – [57], I referred to some recent authorities in which the tort of misfeasance in public office had been considered. I went on to summarise the relevant principles. Relating those principles to the statement of claim then under consideration, I said:
" … it is necessary, in my view, for the plaintiffs to identify not only the act complained of but also, the power said to have been abused by the defendant in acting in the way alleged. It is then necessary to allege that the defendant knew or ought to have known that the conduct would injure the plaintiffs, and to provide the necessary particulars."
53 Earlier in my reasons I had referred to the judgment of Lord Millett in Three Rivers District Council v Bank of England [2000] 3 All ER 1, at page 49, where his Lordship referred to the necessity of distinguishing breach of duty and abuse of power: only the latter can ground claim for misfeasance in public office.
54 However, in my view, the matters alleged against Mr Richardson in par 13 of the statement of claim are, in substance, breaches of duty only. It may be accepted that Mr Richardson had a duty to provide proper
(Page 15)
- information to the defendant's Council in order to permit it to make a proper decision about ODP106. It may be accepted also, for present purposes, that Mr Richardson had a duty to keep the plaintiffs informed of the progress of ODP106 through the Council.
55 It follows, in my view, that any failures on the part of Mr Richardson of the kinds alleged against him were breaches of duty. Mr Richardson clearly had power to provide a whole variety of information to the defendant's council. But I do not think it can be said that he abused that power by providing inadequate information (if that is what he did). If that is the correct analysis, he did not act in excess of his powers.
56 As I have noted above, the plaintiffs themselves refer to the large number of "planning errors and procedural irregularities" in the planning process which led to the approval of ODP106, for which Mr Richardson is said to have been responsible. If there were such errors and irregularities, then Mr Richardson may have been incompetent. However, incompetence is not the same as an abuse of power.
57 I do not think my analysis differs from that of Anderson J in Murcia v City of Nedlands (1999) 22 WAR 1. At page 37 – 38, his Honour referred to the decision of Yeldham J in Dunlop v Woollahra Municipal Council [No 2] which was approved by the Privy Council in Dunlop v Woollahra Municipal Council [1982] AC 158. Anderson J said that misfeasance in public office was a tort:
"so that the plaintiff must not only show damage from the misfeasance, but some misconduct by the public officer or body in the discharge of a duty which it owes to persons, including the persons allegedly aggrieved …"
58 However, I do not understand Anderson J to have suggested that a breach of duty alone might constitute misfeasance in public office. Earlier in his Honour's judgment, he had referred to Northern Territory of Australia v Mengel (1996) 185 CLR 307 where, at page 345, the High Court said:
" … the weight of authority here and in the United Kingdom is clearly to the effect that [misfeasance in public office] is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power." (my emphasis)
(Page 16)
- In other words, misfeasance in public office involves an abuse of power in circumstances in which the person said to have abused his or her power owes a duty to the plaintiff.
59 In my view therefore, par 13 does not disclose a cause of action for misfeasance in public office against Mr Richardson. It should be disallowed.
60 Paragraph 14 of the statement of claim refers to Mr Eric Lumsden, who is said to have been the defendant's Chief Executive Officer at the material time.
61 Mr Lumsden is alleged to have misfeased in public office on three grounds. First, it is alleged that he performed an invalid exercise of power or purported to exercise power in delaying the issue of an apology to the plaintiffs about his inappropriate issuing of a defamation threat and in refusing to seek legal advice on the lawfulness of the waiver of advertising ODP106. Secondly, it is alleged that as the senior officer responsible for overseeing planning processes for the defendant, Mr Lumsden failed to correct the large numbers of breaches of TPS9 and the denial to the plaintiffs of natural justice as pleaded elsewhere in the statement of claim.
62 Thirdly, it is alleged that Mr Lumsden "failed to behave honestly or communicate accurately" in a number of respects.
63 I do not think it necessary to set out the detail of these allegations. That is because they are of the same kind as the allegations made against Mr Richardson: if the allegations are true, they represent breaches of duty rather than abuses of power in the sense necessary to establish a claim for misfeasance in public office. Paragraph 14 should therefore be disallowed.
64 It is alleged in par 15 that Mr Robert Stirk misfeased in public office. Mr Stirk's office is not pleaded in this paragraph. However, he is identified in par 6(3) as the defendant's Development Liaison Officer.
65 The claim against Mr Stirk is based on the allegations that in various respects, he failed to behave honestly. This is said to have been an invalid exercise of power or purported exercise of power. It is said that Mr Stirk cooperated with Mr Lumsden in stating falsely that no written report had been made of his site visit to Lot 504 and in falsely informing him that he had not told Mr Neilson that works being carried out on Lot 504 had been approved.
(Page 17)
66 For the reasons given above in relation to Mr Richardson and Mr Lumsden, I consider that if these allegations are true, they would reflect only a breach of duty, not an abuse of power in the relevant sense.
67 Paragraph 15 should therefore be disallowed.
Paragraph 16
68 It is here alleged that the defendant itself misfeased in public office by committing unlawful acts in abuse of its powers and duties, and doing so with knowledge of, or reckless indifference to, a lack of power. It is alleged also that the defendant knew or ought to have known, or was recklessly indifferent, that its acts would cause the loss or harm suffered by the plaintiffs. The principal matter complained of, is the approval of ODP106.
69 In my view, this paragraph does not disclose a cause of action. That is because the defendant does not hold a public office in the sense required to ground liability for misfeasance. As the High Court said in Northern Territory v Mengel (supra) at page 347:
"So far as policy is concerned, it is to be borne in mind that, although the tort [misfeasance in public office] is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability."
70 Further, even assuming that the approval of ODP106 was unlawful, it does not follow that the defendant acted without power. In any event, there is nothing in par 16 which provides a basis for the assertion that the defendant must or ought to have known it had no power to act as it did. Indeed, to the extent that the plaintiffs' case is based on the proposition that the defendant's officers withheld material information from the councillors, that conclusion seems unlikely.
71 Paragraph 16 should therefore be disallowed.
Paragraph 17
72 Paragraph 17 repeats par 16 to a large extent, in that it contains allegations that the defendant held a public office and performed an invalid exercise of power in approving ODP106 unlawfully.
73 However, par 17 also seeks to impose vicarious liability on the defendant for the actions of its officers as pleaded in pars 13, 14 and 15.
(Page 18)
74 Having regard to the statement made by the High Court in Mengel (supra) that "ordinarily" there will only be personal liability for misfeasance in public office, I have some reservations about the concept of vicarious liability in the present circumstances. However, even assuming (without deciding) that there may be exceptions to the ordinary rule, my conclusion that pars 13 to 15 do not disclose causes of action against the individual officers there identified, must lead in any event to the conclusion that the vicarious liability of the defendant does not arise.
75 Finally, in par 17, it is alleged that the defendant misfeased in public office by acting "with contumelious disregard for the plaintiffs' interests and with reckless indifference to the law".
76 The disregard for the plaintiffs' interest is said to arise from "the large number of procedural errors and breaches of TPS9 set out in paragraph 7 of this statement of claim". However, nothing is said as to the knowledge of the individual councillors responsible for approving ODP106.
77 The allegation of reckless indifference to the law is based on the additional particulars of par 17(3) where it is said that the defendant obtained legal advice in January 1999 in relation to ODP106 "only because of pressure from the Ombudsman". In my view, this may disclose a reluctance to obtain legal advice when it was necessary to do so. However, it appears that advice was taken. The particulars do not, therefore, support an allegation of reckless indifference.
78 The other matters relied on under the additional particulars relate to post-approval events and are therefore irrelevant.
79 For these reasons, par 17 does not disclose a cause of action. It should be disallowed.
Paragraph 18
80 Under the heading of Loss of Consortium ("Companionship"), the plaintiffs say in par 18:
"As a result of the actions complained of in paragraphs 10 to 17, the Plaintiff Loggie suffered psychiatric shock and damage to her sense of community and the Plaintiff Neilson suffered diminution and loss of the companionship of his wife for the period from August 1998 to their divorce in April 2003.
(Page 19)
- Particulars of the Plaintiff Loggie's psychiatric shock will be provided before trial."
81 As I have noted above, it is not clear what is encompassed by the term "psychiatric shock". Nor is it clear what is meant by the "damage to Dr Loggie's sense of community". In essence, I think, the plaintiffs' claim is that the conduct of the defendant and its officers in and relating to the approval of ODP106 so shocked Dr Loggie as to precipitate some form of psychiatric illness and to engender a feeling that the defendant was not acting in the interests of the community in approving ODP106.
82 If that is the correct interpretation of par 18, then it must be accepted for the purposes of this application. However, because the statement of claim does not disclose a cause of action, it is not open to the plaintiffs to make the claims pleaded in par 18. It should therefore be disallowed.
The Prayer for Relief
83 The plaintiffs claim:
"1 General, aggravated and exemplary damages and special damages following on the harm and damage they have suffered because of the City of Swan's actions.
2 A declaration that the City of Swan unlawfully approved ODP106.
3 Costs."
84 For the reasons set out above, I consider there is no basis on which the plaintiffs may properly claim damages. I will therefore disallow prayer 1 above.
85 The order will be, therefore, to delete the references to Mr Lumsden, Ms Pike and Mr Gregorini from par 7(2)(c)(iii) of the Statement of Claim, to disallow par 7(2)(b), pars 10 to 18 inclusive and par 1 of the Prayer for Relief.
86 Whether or not the plaintiffs should be given leave to amend further will depend to a considerable extent on whether their claims are now statute barred. This is a question on which it will be necessary to hear further argument.
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