Tahche v Abboud
[2001] VSC 85
•30 March 2001
| SUPREME COURT OF VICTORIA | Not Restricted | |
| COMMON LAW DIVISION | ||
No.60412 of 1997
| ROBERT TAHCHE | Plaintiff |
| v | |
| SAMMIT ABBOUD & ORS | Defendants |
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JUDGE: | Smith J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 March 2001 |
DATE OF JUDGMENT: | 30 March 2001 |
CASE MAY BE CITED AS: | Robert Tahche v Sammit Aboud & Ors |
MEDIUM NEUTRAL CITATION: | [2001] VSC 85 |
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Parties – Joinder of defendants – Prosecuting solicitor and counsel – Alleged causes of action in negligence and misfeasance in a public office.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. D. Hore-Lacy Q.C. & Mr. J. Gorton | W. E. Pearcey & Ivey |
| For the 1st Defendant | Mr. D. O'Donerty & Ms. E.Brimer | Fitzpatrick Teale |
| For the 2nd & 3rd Defendants | Mr. B. Collis Q.C. | Victorian Government Solicitors |
| For the 4th Defendant | Mr. N. Murdoch | Kenna Croxford & Co |
| For the 5th & 6th Defendants | Mr. P. Faris Q.C. & Mr. L. Glick | Phillips Fox |
HIS HONOUR:
The joinder application
The plaintiff has applied to join Angela Cannon and Mark Rochford as defendants to the proceedings. In an attempt to expedite the handling of the matter I gave leave to the proposed defendants to participate in the application. Written submissions were directed and delivered as a result of which the plaintiff submitted a revised form of proposed statement of claim dated 15 March 2001 (the statement of claim) which in essence sets out the allegations referred to below.
Ms. Cannon was the solicitor instructing for the prosecution at the trial of the plaintiff for an alleged "revenge rape" of the first defendant. Mr. Rochford was counsel briefed to act for the prosecution in that case. In the affidavit in support of the application reference is made to evidence which the plaintiff argues supports the conclusion that during or prior to the trial the first defendant told Ms. Cannon and Mr. Rochford that she had also been repeatedly raped by her other cousin Charlie. The evidence referred to comprises references in statements by two police officers and in a statement by a psychologist Ms. Hook. This information was not passed on to the plaintiff during the trial and not conveyed to him for some years after the conclusion of the trial.
The proposed pleading
The statement of claim alleges two causes of action against each defendant but does not at present make separate allegations against the two individuals.
The first cause of action pleaded is one in negligence. It is alleged that,
(a)the proposed defendants, in prosecuting the revenge rape case were obliged by the common law to disclose to the plaintiff or to his legal representatives information of which they were aware that was relevant to the defence or was otherwise required to be disclosed to the plaintiff to secure a fair trial,
(b)they knew or ought to have know that, if they did not disclose relevant information for the plaintiff or his legal representatives in accordance with their obligations as prosecutors, the plaintiff might be wrongly convicted or be denied defences in the trial and thereby suffer loss and damage and
(c)they owed to the plaintiff a duty to take reasonable care to ensure that the plaintiff or his legal representatives were provided with such information.
It is then alleged that during or prior to the trial in respect of the revenge rape, the proposed defendants received the above information. The pleading alleges that such information could and would have been used at the trial to suggest an explanation for injuries to the complainant's genitalia, a crucial issue at the trial, to challenge the alleged victim's credibility and, or alternatively, to adjourn the trial for further investigation.
It is then alleged that the defendants failed to take reasonable care to ensure that that information was communicated to the plaintiff or to his legal advisers. In the particulars to that pleading there is alleged both a failure to communicate and an active dissuading of the first defendant from disclosing information or reporting the allegations. It is then alleged that loss and damage flowed. The particulars of loss and damage refer to the failure to communicate being a cause of the plaintiff being convicted for the revenge rape and a cause of him remaining in prison until July 1995 (approximately three years).
The statement of claim also alleges that the proposed defendants remained under a continuing duty to take reasonable care to ensure that the plaintiff or his legal advisers were provided with all such information. In support of that allegation, it is pleaded that the proposed defendants from the conclusion of the trial and prior to the plaintiff's release in July 1995 knew or ought to have known that the plaintiff had been convicted of the alleged revenge rape and remained or might have remained in prison as a result. It is alleged that the proposed defendants continued to breach the duty of care during the trial and subsequently until the release of the plaintiff from the gaol.
The statement of claim also alleges against the proposed defendants a claim of misfeasance in public office. It is alleged that
(a)they were at all relevant times public officers in that both were performing public functions in the public interest and were paid from public funds (para 29), and
(b)they carried out their duties as public officers
(i)"improperly with the intention of causing harm to the plaintiff" or
(ii)"knowing that they were doing so improperly in a manner that was calculated in the ordinary course to cause harm to the plaintiff"
(iii)"with reckless indifference as to whether the duties were carried out properly and whether harm would be caused to the plaintiff" (para 30).
In the particulars supplied it is said that the misfeasance comprised the receipt of the information referred to above and the failure to communicate that information during or after the trial to the plaintiff or his legal advisers. It is alleged that the defendants were obliged to provide that information to the plaintiff. It is also alleged that they improperly told or permitted the police to tell the first defendant not to proceed with a formal police report. It is further alleged that they behaved in a manner intended to deny the plaintiff defences that were otherwise open to him or information that would have assisted in his defence rather than behaving in a manner intended to comply with the obligations of prosecutors to disclose information necessary for a fair trial and impartially and fairly present the prosecution case. Loss and damage is alleged.
Submission of proposed defendants
Counsel for the proposed defendants submitted that they should not be joined as parties because the proposed pleading did not disclose causes of action known to the law. Alternatively, counsel submitted that the plaintiff should not be allowed to join the defendants on the pleadings as they now stand.
The claim in negligence
So far as the claim in negligence is concerned, counsel for the proposed defendants submitted that as a matter of law a duty of care owed to the accused is not imposed upon counsel and solicitors acting for the Crown. Counsel submitted that as a matter of principle, and on the basis of a number of authorities, it must be concluded that such a duty of care is not recognised by the law.
Counsel for the plaintiff went back to first principles in advancing his argument that an arguable duty of care was raised on the facts as alleged. Counsel relied upon recent authorities including R v Garafalo[1] and R v Brown [2] concerning the obligation imposed on prosecuting counsel and solicitor to disclose to the plaintiff information necessary to secure a fair trial. Counsel then submitted that requirements for the existence of a duty of care were satisfied. In particular, they argued that proximity as an independent requirement was clearly present in that the plaintiff and the proposed defendants were intimately connected in the conduct of the trial and, in particular, that the role of the defendants was intimately connected to the plaintiff’s fate. They argued that the plaintiff was particularly vulnerable and relied on the proposed defendants complying with their obligations and that the duties owed by the proposed defendants in their role as prosecuting counsel and solicitor supported rather than precluded the existence of a common law duty and assisted in its definition. As to public policy, the plaintiff submitted that the imposition of a duty to take reasonable care on receipt of potentially important information would not adversely affect the ability of prosecuting counsel and solicitor to perform their roles but would rather encourage proper practice.
[1][1999] 2 VR 625
[2][1998] AC 367
Neither the plaintiff nor the proposed defendants had been able to locate authority directly in point. Such authority as there is, however, appears to me to be adverse to the plaintiff’s argument. I refer to Giannarelli v Wraith[3]; Love v Robins[4]; Grimwade v State of Victoria[5]; Emmanuel v Hedley[6]; and Elliot v Seymour[7]. There appears to be a reasonable consistency of view as to the relevant policy considerations which would prevent a duty of care arising in the circumstances which the plaintiff proposes to allege in this case. It is necessary, therefore, to consider the arguments directed to the proposed claim for misfeasance in a public office.
[3](1988) 165 CLR 543
[4](1990) 2 WAR 510 (Full Court)
[5](1997) 90 A Crim R 526 (Harper J)
[6](1997) 137 FLR 339 (Higgins J)
[7][2000] FCA 694 (Ryan J)
The claim of misfeasance in a public office
The law on misfeasance in a public office has received extensive consideration in recent years by courts of the highest authority. I refer to Northern Territory of Australia v Mengel[8]; Sanders v Snell[9]; Three Rivers District Council and Ors v Governor and Co of the Bank of England[10]. Notwithstanding that analysis the limits of the tort are undefined: Mengel[11]; Sanders[12]. These decisions were recently considered in the unreported decision of Perry J in Edwards v Olsen and Ors[13]. His Honour identified four essential elements of the tort of misfeasance in public office.
(1) the defendant must be a public officer,
(2) there must be an invalid exercise of power or purported exercise of power,
(3) the defendant must be shown to have the requisite state of mind,
(4)the plaintiff must suffer damage as a consequence of the acts or omissions of the public officer.
A public officer has been defined as a person discharging a duty in the discharge of which the public are interested and paid out of funds provided by the public[14].
[8](1994-1995) 185 CLR 307 – discussed in Susan Kneebone "Misfeasance in a Public Office after Mengell's case: a "Special" Port no more? (1996) Tort Law Review 14
[9](1998) 196 CLR 329
[10][2000] 2 WLR 1220 (House of Lords)
[11]at 345
[12]at 346
[13][2000] SASC 438
[14]R v Whittaker [1914] 3 KB 1283-1296
As to the second element, the scope of the requirement of an invalid exercise of power is unclear. It includes absence of power but extends to acts invalid for want of procedural fairness: Mengel[15]. Clearly it extends to the exercise of power for an improper purpose. Where the conduct complained of occurred with a specific intent to cause injury to the plaintiff the purported exercise of power although ostensibly within power is invalid because the public officer has acted for an improper purpose. It would follow, I suggest, that it would extend to the exercise of power for irrelevant considerations and extend to the situation where the power was exercised on grounds that were manifestly unreasonable.
[15]per Brennan, J., above at 356-7 approved Sanders v Snell (1998) 196 CLR 329, 364
Insofar as the state of mind element is concerned, Perry, J. suggests that on the authorities, it may be satisfied by proof that the public officer in question:
(a)had acted for an improper ulterior motive in that he intended to cause injury to the plaintiff ("targeted malice"); or
(b)had actual knowledge that he had no power to do the act complained of and that the act would probably injure the plaintiff[16]; or
(c)absent actual knowledge of the absence of power, proceeded “recklessly indifferent as to the existence of the power to engage in the conduct which caused the plaintiff’s loss”[17].
[16]citing Lord Steyn in Three Rivers at 1231
[17]citing Mengel, per Brennan, J. at 359 and Mason, C.J. et al at 347
It has been held that the concept of intentional infliction of harm includes acts which are calculated in the ordinary course to cause harm or which are done with reckless indifference to the harm that is likely to ensue[18]. It has also been stated that in those cases where the public official knows that his or her actions are beyond power, liability will follow if risk of harm is foreseeable[19].
[18]see Mengel at 347 and Sanders v Snell at 345.
[19]Mengel, at 347
Counsel for the proposed defendants did not seek to argue that Ms Cannon was not a public officer. She arguably satisfies the pre-requisites of a public officer. The defendants argued that Mr Rochford who is, and was at all material times, a member of the independent bar was not a public officer. Bearing in mind the long established definition of public officer, however, I am satisfied that there is an issue to be tried as to whether counsel from the independent bar engaged by the Director of Prosecutions to prosecute the plaintiff on behalf of the Crown in exercising his powers for the general public good, and being paid out of the public purse, is for the purpose of this tort a public officer.
Turning to the misfeasance pleading, the proposed pleading (paragraph 30) alleges, firstly, a cause of action based on conduct intended to cause harm (para. (a)). The other sub-paragraphs (b) and (c) are less clear as to the basis upon which the allegations are made. It is alleged that the proposed defendants, as public officers, acted "improperly". The proposed pleading does not allege that the actions were "without power". It may be that it is sought by these paragraphs to argue that there was misfeasance in that the proposed defendants proceeded to withhold the information for improper reasons, or irrelevant considerations or on manifestly unreasonable grounds. On the other hand, it may be that the pleading seeks to do no more than state the alternative ways in which the High Court suggested that intent to harm could be established[20].
[20]Mengel and Sanders v. Snell
Ultimately, as Brennan J said in Northern Territory v Mengel[21], the tort:
“is concerned with conduct which is properly to be characterised as an abuse of office and with the results of that conduct”.
[21]at 358
For the purposes of this application, it is sufficient to proceed on the basis of a claim limited to one alleging the intentional infliction of harm. On the material before me the plaintiff does not have any direct evidence of an intention to cause harm to the plaintiff. On that material, the plaintiff would have to persuade the trial court that such a finding should be inferred. I have referred above to the material in the possession of the plaintiff.
On that material it appears to me that there is a real question to be determined as to whether an intention on the part of the proposed defendants to inflict harm on the plaintiff should be inferred assuming that they received the information as alleged[22] - a fortiori, applying the wider definition of that intent[23].
[22]Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 92
[23]Mengel and Sanders v Snell, above
I do not propose to comment further on the pleadings in the proposed statement of claim. The application before me is an application for leave to join defendants. The plaintiff’s advisors will have benefited from the submissions from the proposed defendants’ counsel in formulating the amended statement of claim that they ultimately file.
For the above reasons, I am satisfied that the plaintiff should have leave to join the proposed defendants. I propose to so order and to direct the plaintiff to file and serve an amended statement of claim containing his allegations against them. It may then be appropriate to address any pleading issues should such issues then arise.
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