Smith v The State of South Australia No. DCCIV-97-1193 Judgment No. D45

[1999] SADC 45

BRIAN SMITH V THE STATE OF SOUTH AUSTRALIA

[1999] SADC S45

Judge Lee
Civil Jurisidiction

1 This is an appeal against orders of a Master, on an application by the defendant, that an amended statement of claim be struck out as disclosing no cause of action and that the action be dismissed.  
2 The appeal is by way of a re-hearing of the application (Rule 97.01). The outcome will turn on whether there is a real question of fact or law to be determined: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91. The power to terminate an action summarily for want of a cause of action should be used sparingly and only where the lack of a cause of action is clearly demonstrated: General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 - 129 and Rogers v Legal Services Commission (1995) 64 SASR 572 at 588.
3 Due partly at least to the plaintiff’s lack of legal representation, this action already has a protracted interlocutory history, and the amended statement of claim before me is his fourth attempt.
4 The earlier history is briefly as follows.
5 The plaintiff was the subject of a complaint of sexual harassment in September 1993 by a former employee under the Sex Discrimination Act 1984 (Cth). The complaint was investigated (under, it would seem, a delegation of authority) by Ms Melvin, an officer of the Commissioner for Equal Opportunity of South Australia. She conducted separate interviews of the complainant, the plaintiff and a witness for the complainant. She directed the plaintiff to supply particulars of former employees. The Commissioner then gave to the plaintiff a notice to that effect under section 54 (1) of the Act. The complaint was eventually listed for hearing before the Human Rights and Equal Opportunity Commission of the Commonwealth on 29 August 1995. The plaintiff was legally represented. The complaint was resolved on the first day of the hearing. The Commission found the complaint substantiated, noted the plaintiff’s apology, and ordered that he pay compensation of $1000.
6 The plaintiff subsequently wrote to the Ombudsman, the Premier and the Attorney-General alleging misconduct by Ms Melvin in the course of her investigation of the complaint.  In essence, his allegations were that she slanted statements prepared by her with respect to the interviews in favour of the complainant, she failed to interview witnesses whose names were supplied by the plaintiff, and  her demand for the names and addresses of former employees of the plaintiff was oppressive.
7 The plaintiff repeats these allegations in his amended statement of claim, and says that the Commissioner for Equal Opportunity was misled by Ms. Melvin into deciding that there was substance in the complaint.  The plaintiff adds allegations against the Ombudsman, the Premier and the Attorney-General about the way that they responded or failed to respond to his concerns.  He says that he, his wife and his company have suffered substantial losses as a result.  He says that, at the Commission hearing, he offered the complainant $1000 to go away, and signed the apology without reading it.
8 No cause of action is specifically pleaded in the amended statement of claim, but that does not matter.  The question is whether any and what cause of action is open on the material facts as pleaded.  A court is free to give judgment on any cause of action whatever, provided such cause of action is open on the material facts as pleaded and on the evidence as proved:  S T Hywood Pty Ltd v Standard Chartered Bank Ltd (unreported judgment of Perry J, S3764, 21 December 1992). 
9 Two causes of action need to be considered, namely breach of statutory duty and misfeasance in a public office. 
10 As for breach of statutory duty, no action lies unless the legislation confers a right on the aggrieved person to have the duty performed: O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 477 to 478 and Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 482. The relevant legislation is the Sex Discrimination Act 1984 (Cth) and the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Both section 111(1) of the former and section 48 (1) of the latter protect persons acting under the authority or on behalf of the relevant Commissions from actions "for or in relation to an act done or omitted to be done in good faith in the performance or purported performance of any function, or in the exercise or purported exercise of any power" conferred on the relevant Commission or Commissioner. It is at least arguable that, by implication, persons acting in bad faith will be liable to action for or in relation to an act done or omitted to be done. In other words, the legislation implies a duty to act in good faith and a right in any aggrieved person to sue for a breach of that duty. I refer to the chapter headed Special Protections in Kneebone on Tort Liability of Public Authorities (from page 242).
11 As for misfeasance in a public office, an indispensable element of this cause of action is an invalid exercise of statutory authority. In Northern Territory v Mengel (1995) 69 ALJR 527, officers of the appellant who were stock inspectors acted outside the scope of their statutory authority when they informed the respondents that their cattle were subject to movement restrictions. There was no approved eradication programme current at the relevant time. Dean J said (at page 554) that the elements of the tort are: (i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff. Brennan J spoke of the first element in this way (at pages 545 and 546):-
"A number of elements must combine to make a purported exercise of administrative power wrongful.  The first is that the purported exercise of power must be invalid, either because there is no power to be exercised or because a purported exercise of the power has miscarried by reason of some matter which warrants judicial review and a setting aside of the administrative action.  There can be no tortious liability for an act or omission which is done or made in valid exercise of a power.  A valid exercise of power by a public officer may inflict on another an unintended but foreseeable loss - or even an intended loss - but, if the exercise of the power is valid, the other’s loss is authorised by the law creating the power.  In that case, the conduct of the public officer does not infringe an interest which the common law protects."
12 I return to the amended statement of claim. The document is defective in a number of respects.
13 First, as a lengthy and detailed narrative of everything that the plaintiff perceives to be of significance, the document offends the rule that a pleading should contain a statement in summary form of the material facts, and not the evidence, upon which the party relies (Rule 46.04(1)(b)).
14 Next, its complaints against the Premier and the Attorney-General of failure to respond to correspondence and denial of access to documents are no more than complaints.  There was no duty and no breach of duty.  I agree with the Master that the complaints do not give rise to any cause of action known to the law.
15 With respect to the plaintiff’s complaints against the Ombudsman, the Ombudsman is protected from the consequences of acts or omissions by section 9 of the Royal Commissions Act 1917 through section 19 of the Ombudsman Act 1972. Again I agree with the Master that the complaints do not give rise to any cause of action known to the law.
16 At various places in the amended statement of claim, the plaintiff alleges that the Commissioner and officers of the Commissioner for Equal Opportunity in South Australia acted "ultra vires".  The plaintiff seems to be misusing the expression, given that its true meaning is invalid conduct in the sense of conduct beyond power.  I have already referred to the observation of Brennan J in Northern Territory v Mengel to the effect that there is no tortious liability at common law for an act or omission which is done or made in valid exercise of a power.  The allegations with respect to ultra vires conduct should be deleted as disclosing no cause of action.
17 As the Master observes in his reasons, and as became apparent during the plaintiff’s submissions to me, the plaintiff’s main complaints are against Ms Melvin on the grounds already mentioned.  And as is apparent from the amended statement of claim, the plaintiff also makes complaints against Mr Cheok, another officer of the Commission, that he instructed conciliation staff to build up a case against the plaintiff.  At various places in the document, the plaintiff uses words such as "bias", "distortion", "pressure" and "malice".
18 It seems to me that these complaints imply, and should be treated as alleging, that the acts of Ms Melvin and Mr Cheok were not done in "good faith" in terms of the relevant legislation.  This means that the following paragraphs should be allowed to stand as alleging material facts which arguably give rise at least to a breach of statutory duty:  paragraphs 1, 3 (but not 3.1), 4 (but not 4.1), 6, 6.1, 7.4 (but the second sentence should be deleted), 7.5 (but the last sentence should be deleted), 7.5(1) (but the words "Ultra Vires and Ultra Vires (Substantive)" should be deleted), 7.5(2) (but the last sentence should be deleted), 7.8 (but the second and third sentences should be deleted), 7.9, 8, 8.1, 8.2 (but the last sentence should be deleted), 8.2(a), 8.2(b) (but the second sentence should be deleted), 9 (but the last sentence should be deleted), 10 (but the second sentence should be deleted), 14 (but the second sentence should be deleted), 14.1, 14.2, 14.3, 14.3(a) (but the first sentence should be deleted), 14.4, 14.5, 14.6, 14.7 (including the dot points), 14.7(a), 14.7(B), 14.7(c), 23 and 23.3. 
19 With respect to the plaintiff’s allegations of injury and financial loss, paragraphs 38 and 42 and paragraphs (5) and (9) of the PARTICULARS OF LOSS relate exclusively to his wife and should be struck out, because she is not a party to the proceedings.  The claims for "loss of reputation" and "loss of wife’s Society" in paragraph (4) of the PARTICULARS OF LOSS should be struck out also as lacking any basis in law or pleaded fact.  The paragraphs which provisionally should be allowed to stand are 15, 15.1, 15.2, 15.3, 15.4, 15.5, 15.6, 22.3, 35 (but the fifth, sixth and seventh sentences should be deleted), 36, 37, 39, 40, 41, 43 and 44.   Of the PARTICULARS OF LOSS, paragraphs (1), (2), (3), (4) (with the above deletions), (6), (7), (8) and (10) provisionally should be allowed to stand.   I say ‘provisionally’ because, strictly speaking, not all of the plaintiff’s allegations of injury and financial loss are confined to his own injury and loss and causally linked to such acts or omissions as arguably give rise to a cause of action.  Since it is not feasible for me to edit the allegations, I think that those paragraphs should be left in to be dealt with by the trial judge as appropriate either at the hearing or in the ultimate reasons for decision.   It scarcely needs emphasising that the sooner these proceedings get to trial the better for all concerned.  If, however, the defendant considers that it will be unduly disadvantaged by this approach, I am willing to hear an application in advance of the trial.   I give the defendant liberty to apply in that regard.
20 All other paragraphs should remain struck out on one or more of the grounds that they do not disclose any cause of action, that they plead evidence rather than material facts, that they plead propositions of law, and that they are repetitious or irrelevant or otherwise not the proper subject of pleadings.
21 The appeal will be allowed to the extent indicated in these reasons.