Obeid v Lockley

Case [2018] NSWCA 71

Court of Appeal


Supreme Court


New South Wales

  • Summary available
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Medium Neutral Citation: Obeid v Lockley [2018] NSWCA 71
Hearing dates: 4-5 September 2017
Date of orders: 12 April 2018
Decision date: 12 April 2018
Before: Bathurst CJ at [1]; Beazley P at [205]; Leeming JA at [207]
Decision:

(1) Appeal dismissed.

 (2) Appellants to pay the respondents’ costs of the appeal.
Catchwords: TORTS – Misfeasance in public office – officers of ICAC appointed as senior investigators recorded contents of documents on video during execution of search warrant – whether officers held public office – whether officers acted in excess of power – whether officers were aware of or recklessly indifferent to a likely risk of harm to the plaintiffs – whether sufficient for there to be a reasonable foreseeable risk of harm – whether officers caused damage to the plaintiffs
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Crimes Act 1900 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Public Sector Employment Legislation Amendment Act 2006 (NSW)
Cases Cited: Amoo Gottfried & Co v Legal Aid Board (Unreported, English Court of Appeal, 1 December 2000)
Anning v Anning (1907) 4 CLR 1049; [1907] HCA 13
Barnes v Addy (1874) LR 9 Ch App 244
Beaudesert Shire Council v Smith (1966) 120 CLR 145; [1966] HCA 49
Bradshaw v McEwans Pty Ltd [1951] HCA 480; 217 ALR 1
CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47
Calveley v Chief Constable of the Merseyside Police [1989] 1 AC 1228
Cannon v Tahche (2002) 5 VR 317; [2002] VSCA 84
Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186
Cornwall v Rowan (2004) 90 SASR 269; [2004] SASC 384
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366
DPP (Cth) v Thomas [2016] VSCA 237; 315 FLR 31
Dunlop v Woollahra Municipal Council [1982] AC 158
Erickson v Bagley [2015] VSCA 220
Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731
Ex parte Kearney (1917) 17 SR (NSW) 578
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Federal Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146; [2008] HCA 32
FHR European Ventures LLP v Cedar Capital Partners LLC [2015] 1 AC 250; [2014] UKSC 45
Garrett v Attorney-General [1997] 2 NZLR 332
Graham v Minister for Immigration [2017] HCA 33; 91 ALJR 890
Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266
Henly v Mayor and Burgesses of Lyme (1828) 5 Bing 91; 130 ER 995
Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310
Jones v Dunkel…

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Obeid v Lockley [2018] NSWCA 71
Case
[2018] NSWCA 71
Decision Date

CaseChat Overview and Summary

The plaintiffs, Mr. Obeid and Mr. Macdonald, brought proceedings against Mr. Lockley and other officers of the Independent Commission Against Corruption (ICAC) alleging misfeasance in public office. The dispute arose from the ICAC officers' actions during the execution of a search warrant at the plaintiffs' premises, where the officers recorded the contents of documents onto video. The matter was heard by Bathurst CJ, Beazley P, and Leeming JA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the ICAC officers held a public office, whether their actions in recording the documents exceeded their lawful powers, and crucially, whether they acted with the requisite knowledge or recklessness regarding the likelihood of harm to the plaintiffs. The court was required to determine whether the standard for establishing misfeasance in public office required proof of awareness of a *likely* risk of harm, or if a *reasonably foreseeable* risk of harm would suffice, and whether the officers' conduct caused damage to the plaintiffs.

The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The court reasoned that the ICAC officers, in their capacity as investigators, held public office. Their actions in recording the documents were found to be within the scope of their powers under the relevant legislation, and therefore, they did not act in excess of their authority. Critically, the court determined that the tort of misfeasance in public office requires proof that the public officer knew their conduct was likely to cause harm to the plaintiff, or was recklessly indifferent to such a likelihood. A mere reasonable foreseeability of harm was insufficient. The evidence did not establish that the officers possessed this requisite state of mind, nor that their actions caused the alleged damage.

Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondents’ costs of the appeal.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Appellants to pay the respondents’ costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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