Shire of Kellerberrin v Nyoni & Ors

The applicant, the Shire of Kellerberrin, sought special leave to appeal from a majority decision of the Full Court. The dispute concerned the tort of misfeasance in public office, with the Shire arguing that the CEO, Mr Friend, had not exercised a power attaching to his public office when making certain communications, and that the Full Court had erred in law in finding otherwise. The Shire also raised alternative grounds concerning the elements of knowledge and malice required for the tort, the presumption of damage, and the Shire's direct liability for the CEO's actions.

The High Court was required to determine whether the Full Court had erred in law in its findings regarding the tort of misfeasance in public office. Specifically, the Court needed to consider whether the CEO's communications constituted an exercise of power attaching to his public office, whether an intention to harm was sufficient for the tort without knowledge of unlawful conduct, whether damage could be presumed in such cases, and whether the Shire could be held directly liable for the CEO's actions. These questions involved the interpretation and application of established legal principles relating to the tort of misfeasance in public office.

The applicant argued that the tort of misfeasance in public office requires the impugned act to be one that attaches to the public office itself, not merely any act performed by a public officer. They contended that the Full Court's finding that the CEO's communications were inherently part of his role was an error of principle, and that the factual findings were insufficient to support this conclusion. Furthermore, the applicant submitted that the tort requires both an intention to harm and knowledge of the unlawful nature of the act or abuse of power, and that the Full Court's acceptance of intention to harm alone was contrary to authority. The applicant also argued that actual damage, not presumed damage, must be proven, and that direct corporate liability for the CEO's actions was not established.

The application for special leave to appeal was refused. The Court did not provide detailed reasons for this refusal in the provided transcript, but the arguments presented by the applicant and the responses from the respondent's counsel indicate that the High Court was not persuaded that there were errors of law or points of principle of sufficient importance to warrant granting special leave. The respondent argued that the Full Court's findings were correct and that the applicant's arguments involved a departure from established authority or were based on a mischaracterisation of the factual findings.