State of Tasmania v MFC - [2021] TASFC 6

[2021] TASFC 6

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: State of Tasmania v MFC [2021] TASFC 6

PARTIES:  STATE OF TASMANIA
  v
  MFC

FILE NO:  1416/2020
DELIVERED ON:  31 March 2021
DELIVERED AT:  Hobart
HEARING DATE:  9 November 2020
JUDGMENT OF:  Blow CJ, Wood J, Martin AJ

CATCHWORDS:

Torts – Miscellaneous torts – Misfeasance in public office – Public servant investigating and reporting as to circumstances of child alleged to have been sexually assaulted – Claim for damages by foster parent against State – Whether arguable that foster parent has a cause of action.

Children, Young Persons and Their Families Act1997 (Tas), s 111.
Northern Territory v Mengel (1995) 185 CLR 307; Holloway v State of Tasmania [2006] TASSC 60, 15 Tas R 127, considered.
Aust Dig Torts [1516]

REPRESENTATION:

Counsel:
             Appellant:  M E O'Farrell SC
             Respondent:  H Heuzenroeder
Solicitors:
             Appellant:  Solicitor General
             Respondent:  S + P Lawyers

Judgment Number: [2021] TASFC 6
Number of paragraphs: 56

Serial No 6/2021
File No 1416/2020

STATE OF TASMANIA v MFC

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
WOOD J
MARTIN AJ
31 March 2021

Order of the Court:

Appeal dismissed.

Serial No 6/2021
File No 1416/2020

STATE OF TASMANIA v MFC

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
31 March 2021

I agree with Martin AJ that this appeal should be dismissed. I agree with his Honour's reasons. I would like to add some comments about the Full Court's decision in Holloway v State of Tasmania [2006] TASSC 60, 15 Tas R 127 at 140-141.
The appellants in that case had made three complaints about the conduct of police officers, relating to three separate incidents. Subsequently they made a verbal application to the Police Internal Investigations Unit for a review of the handling by police officers of their three complaints. They subsequently sued the State of Tasmania for damages, alleging that the Commissioner of Police had committed the tort of misfeasance in public office in relation to the review, and that the State of Tasmania was liable to pay them damages in respect of the Commissioner's tort. The State successfully applied for their action to be summarily dismissed. Evans J concluded that it had no prospects of success: Holloway v Tasmania [2005] TASSC 90, 15 Tas R 127 at 129-139. There was an appeal to the Full Court. It had no merit at all. The appellants appeared without legal representation. At the conclusion of the hearing of the appeal, it was immediately dismissed. I gave the principal judgment, which was delivered orally. Crawford J (as he then was) and Tennent J agreed with me.
In that case, like this one, there was a statutory provision that made the State, not the tortfeasor, liable to pay damages if the tort had been committed in good faith. In this case, unlike Holloway, there is an assertion that a public officer committed the tort of misfeasance in public office…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] TASFC 6
Decision Date: 31 March 2021

CaseChat Overview and Summary

The State of Tasmania (the appellant) appealed to the Full Court of the Supreme Court of Tasmania against a decision of a single judge that a foster parent (the respondent) had an arguable cause of action against the State for misfeasance in public office. The dispute arose from an investigation and report concerning allegations of sexual assault of a child, which the respondent alleged was conducted negligently and maliciously by a public servant, causing damage to the respondent's reputation and livelihood.

The central legal issue before the Full Court was whether the respondent had an arguable case that a public servant, in conducting an investigation and making a report regarding allegations of child sexual assault, owed a duty of care to the foster parent and had acted in a manner that constituted misfeasance in public office. Specifically, the court considered whether the respondent could establish the elements of this tort, including an intention to cause harm or recklessness as to causing harm, and whether the public servant's actions were outside the scope of their lawful authority.

The Full Court, applying established principles of the tort of misfeasance in public office, found that the respondent had not demonstrated an arguable case. The court reasoned that the public servant's actions, even if negligent or erroneous, were undertaken within the scope of their statutory duties and powers related to child protection investigations. Crucially, the respondent failed to establish that the public servant acted with the requisite malice or intent to injure, or that the actions were so far outside the bounds of their authority as to be unlawful. The court distinguished the present case from those where misfeasance has been established, emphasising the need for a deliberate or reckless disregard for the rights of the individual.

The appeal was allowed, and the order of the single judge was set aside. The Full Court concluded that the respondent's claim for misfeasance in public office was not arguable and therefore dismissed the respondent's application.

Orders