Obeid v Lockley

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.