Toomer, William Frederick v Commonwealth of Australia

[1998] FCA 235

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - pleadings - application for leave to further amend statement of claim - whether statement of claim founded a claim of misfeasance in public office - conspiracy and negligence properly pleaded - whether claim should be struck out for lack of material facts.

Merit Protection (Australian Government Employees) Act s 52

Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279, noted

WILLIAM FREDERICK TOOMER v COMMONWEALTH OF AUSTRALIA
VG 274 of 1997

GOLDBERG J
MELBOURNE
26 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 274 of 1997

BETWEEN:	WILLIAM FREDERICK TOOMER Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	26 FEBRUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The applicant’s motion dated 12 November 1997 filed on 13 November 1997, be dismissed, without prejudice to the right of the applicant to make further application to deliver an amended statement of claim.

1. The applicant pay the respondent’s taxed costs of and incidental to the motion and the hearing this day.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 274 of 1997

BETWEEN:	WILLIAM FREDERICK TOOMER Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	GOLDBERG J
DATE:	26 FEBRUARY 1998
PLACE:	MELBOURNE

EXTEMPORE REASONS FOR JUDGMENT

HIS HONOUR:  On 22 October 1997 I ordered that the statement of claim be struck out and that the applicant have leave to apply by notice of motion for leave to deliver an amended statement of claim.  On 12 November 1997 such a motion for leave was filed and a proposed amended statement of claim has been exhibited to an affidavit in support of the motion.  For the background facts leading up to the pleading, I refer to my reasons for judgment on 22 October 1997 and also note what is alleged in paragraphs 1 through 8 of the proposed amended statement of claim which I adopt for the purposes of this proceeding.

There are four causes of actions pleaded:  conspiracy by unlawful means in paragraphs 10 to 13; misfeasance in a public office, paragraph 14; negligence, paragraphs 15 to 17; and ultra vires action in paragraph 18.  The causes of action are as follows:

“10.At the time the Plaintiff was performing his duties as Quarantine Inspector, Senior Quarantine Inspector and Senior Grains Inspector, his superior officers included Dr John Bryan Matheson (sic) Western Australian Director of Health, Mr Frederick George Dienhoff, Assistant Director (Executive Services) of the Western Australian Division of the Department of Health and later in 1974 Dr John Wilmot who was Deputy Director of Health in Western Australia and became Western Australia Director of Health in August 1976 (“the conspirators”).

11.From a time shortly prior to the Plaintiff’s confirmation of his appointment as Quarantine Inspector and Senior Grains Inspector in Western Australia in June of 1972 the conspirators conspired, together with their servants or agents, to injure the Plaintiff by unlawful means by:

(a)attempting to procure the retirement and/or termination of the Plaintiff from his employment with the Defendant;

(b)attempting to procure the transfer of the Plaintiff from his appointment in Western Australia;

(c)attempting to prevent the Plaintiff from properly performing his duties.

(d)attempting to improperly influence the Plaintiff in the performance of his duty;

(e)obstructing or intimidating the Plaintiff in the performance of his duty;

(f)intentionally and knowingly, obstructing and/or resisting and/or hindering the Plaintiff in carrying out or attempting to carry out his function or duty and/or exercise his powers of carrying out his function or duty pursuant to a law of the Commonwealth and/or on behalf of the Commonwealth.

12.In pursuance of the said conspiracy, the Defendants, their servants or agents, did the following overt acts:

(a)advised and continued to advise the Plaintiff’s senior officers, shipping interests, the Plaintiff’s supervisor in the Department of Primary Industry and senior administrators within the central office of the Department of Health, that the Plaintiff was in incompetent inspector;

(b)advising and continuing to advise the Plaintiff’s Director General that the Plaintiff was disobedient and of defective or difficult character;

(c)transferring the Plaintiff from his office at the waterfront in Fremantle to a city office away from the place where he performed his duties in which office he was confined and ultimately forbidden to communicate with subordinate staff;

(d)requiring the Plaintiff to perform a method of estimation of rat numbers upon ships in a manner that was both unworkable and untenable;

(e)giving the Plaintiff conflicting instructions on the manner in which his work was to be performed;

(f)in or about May 1973 the plaintiff was directed by Mr Dienhoff to withdraw a ship fumigation order against the motor vessel ‘Cedarbank’ and not to proceed with a poisoning program upon the vessel;

(g)in or about February 1977 when directed by the Assistant Director (medical) of the Department of Health to investigate rats upon the motor vessel San Pedro Bay the Plaintiff required the Master of the vessel to have it fumigated and was told by Dr Wilmot that although the vessel should be fumigated the Plaintiff was not to issue a fumigation order and to only instruct the Master orally to have the vessel fumigated.  The next day the director denied issuing such an instruction;

(h)instructing the Plaintiff to apply a ship inspection method which was unworkable and not in accordance with department procedure policy and international standards;

(i)requiring and/or recommending the retirement of the Plaintiff on medical grounds in particular psychiatric grounds;

(j)in January 1974 Dr Mathieson wrote to the Plaintiff’s direct superior, Dr Howells advising that the Plaintiff was mentally unstable;

(k)Dr Mathieson, despite being instructed to do so, refused to return the Plaintiff to full normal duties;

(l)continuing to wrongly assert to inquiries and agencies and to the Merit Protection Review Agency the matters set out above;

(m)preparing an incomplete and misleading minute from Dr J Bryan Mathieson, to the Director General of Health under PS Regulation 33 to Senior Quarantine inspector, William F Toomer (the Plaintiff) dated 7 August 1993;

(n)further particularity will be provided after discovery.

13.Each of the acts specified in the preceding paragraph was done by the person or persons, their servants or agents, on behalf of themselves and their co‑conspirators in furtherance of the conspiracy.

14.Further, the acts referred to above in relation to each of the conspirators in paragraph 10 constitute misfeasance of public office, in that the acts complained of in paragraphs 11 and 12 were done with the intention of inflicting injury and/or with the knowledge there was no power to engage in such conduct and such conduct was calculated to produce injury and/or such conduct was done with reckless indifference as to the existence of such power to support the conduct.

15.Further, the Defendant had a duty to exercise reasonable care and to at all times to ensure that the Plaintiff was able to carry out his duties as a quarantine inspector, senior quarantine inspector and senior grains inspector freely and without risk to his health, in particular, that as a result of his employment with the defendant the Plaintiff did not suffer injury including psychiatric injury.

16.Negligently and in breach of that duty the Defendant embarked upon the conspiracy as set out in paragraphs 11 and 12 inclusive.

17.As a result of the Defendant’s negligence being the matters set out in paragraphs 11 and 12 inclusive the Plaintiff has suffered injury, loss and damage.

PARTICULARS

It will be alleged that the Plaintiff suffered anxiety and depression and stress related symptoms as a result of the matters alleged.

It will also be alleged that the conspiracy caused the Plaintiff to be prematurely retired from the public service with consequential wage loss and loss of earning capacity.

18.Further, the report prepared by the Merit protection Review Agency dated 12 February 1991 was in breach of section 56 of the Merit Protection (Australian Government Employees) Act 1984 in that the Plaintiff as the Commonwealth Employee referred to in section 56(1)(a) and the subject of the inquiry was not a current Commonwealth Employee as understood by either section 3 or section 45 of the Act and therefore, the inquiry pursuant to section 56 of the Merit Protection (Australian Government Employees Act 1984 was ultra vires, as the Plaintiff was not a current employee. Further, in any event the report was not in accordance with the terms of the reference of the inquiry.”

The applicant has sought to meet the criticism I made in my last reasons for decision that the litany of the cause of action was uttered without setting out allegations of material facts in relation to the matter, such as the unlawful acts and the use of the unlawful means.  What is identified in paragraph 10 is that at the time the applicant was performing his duties his superior officers included three nominated persons.  It is then alleged in paragraph 11 that shortly prior to June 1972 the conspirators - these three persons - conspired, together with their servants and agents unnamed, to injure the applicant by unlawful means, and then a number of matters are set out.

It is then alleged in paragraph 12 that in pursuance of that conspiracy, “the defendant” - I assume the plural is a typographical error - their servants or agents did certain overt acts, very few of which relate to acts of individual persons.  It is then alleged that each of the acts was done by the person, their servants or agents, on behalf of themselves and their co‑conspirators in furtherance of the conspiracy.  None of that pleading identifies what is said to be the relationship of the respondent Commonwealth to the conspirators or the responsibility of the Commonwealth for the acts of the conspirators.  This is not just a technical point.  An allegation of conspiracy is a serious allegation.  The conspirators by name - or such of them as are named - are not parties to the action, but the Commonwealth of Australia is.  Mr Gillies, who appeared for the applicant, says, “Well, that matter can be cured by a plea of vicarious liability.”  That may or may not be and I express no view upon the matter for the moment.  What I do say though is this:  it shows that there is a deficiency in the pleading that may or may not be able to be cured.

Further, there is a problem in paragraph 11 with reference to the conspirators and their servants or agents and the reference to the respondent.  Perhaps that means the respondent’s servants or agents - in paragraph 12.  These are persons said to be parties to the conspiracy but not otherwise identified.  This pleading makes it very difficult, if not impossible, for the respondent to understand the case to be met in respect of all the participants in the conspiracy.  In my view that pleading transgresses the principles identified by the High Court in Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279.

Another difficulty with the pleading in paragraph 11 relates to the issue whether it is a common purpose or an unlawful means which is set out in the various subparagraphs.  It is also not clear as to the precise identification of the persons involved with each aspect there pleaded.  This is exacerbated by paragraph 12 where the overt acts are not attributable to any particular conspirator, although on one view they are attributable to all the conspirators.  If those acts are attributable to all the conspirators, it creates problems because it refers - as does paragraph 11 - to acts from June 1972 but Dr Wilmot only became involved so far as the pleading is concerned in 1974.

I ask the rhetorical question, does this mean that only one conspiracy and one combination is relied upon or is there more than one conspiracy?  In a sense the answer to that question does not matter because I have to take the pleading on its face.  I think the pleading on its face is embarrassing in the legal sense to the extent that it is not made clear what is precisely being put.  There is also a question which needs to be clarified or elaborated upon as to the unlawful means referred to in paragraph 11 and the overt acts in paragraph 12, some of which on their face are quite inconsistent with suggestions of unlawful means or improper acts.

I turn to the pleading of misfeasance in a public office, which is predicated upon the acts of the conspirators referred to in paragraph 10 constituting misfeasance in a public office.  But that of course is the misfeasance of the individual conspirators identified, which again refers to the three nominated persons.  Paragraph 14 then goes on to say that the acts complained of in paragraphs 11 and 12 were done with the intention of inflicting injury and the paragraph continues.  The problem with that pleading is that it attributes, as Mr Tracey QC who appeared for the respondent submitted, each of the acts referred to in paragraphs 11 and 12 to all the conspirators, although it is clear on its face that some of those acts could only have related to one of the conspirators. 

There is a further problem which is an example of the vice of pleading a cause of action by reference to a principle of law.  Paragraph 14 pleads, “done with the intention of inflicting injury.”  Presumably that is injury on the applicant, although the matter is not made clear.  It is then said, “with the knowledge that there was no power to engage in such conduct.”  When one relates that plea to some of the sub‑paragraphs of paragraph 11 and paragraph 12, it is not immediately clear why there would be no power to engage in some of those acts, such as giving the plaintiff conflicting instructions on the manner in which his work was to be performed.  That might be careless, it might be incompetence but the question of power, in my view, is quite a different issue. 

Turning then to the plea in negligence in paragraphs 15 to 17.  The plea in negligence is phrased differently from what it was in the earlier pleading before me but, in my opinion, it is still incomplete.  To assert “a duty to exercise reasonable care”, as such, does not plead material facts in relation to the duty of care and material facts upon which reliance is placed to justify the existence of the duty.  It is then said in paragraph 16 that negligently and in breach of that duty, the defendant, that is the Commonwealth, embarked upon the conspiracy but it is not alleged earlier that the Commonwealth embarked upon the conspiracy, nor is it identified why it is that it is said the respondent did so when the allegations are made against the co‑conspirators.  Finally in paragraph 17, there is an allegation of loss and damage but the causal relationship between the alleged negligence of the Commonwealth and the loss suffered by the applicant is not clearly identified. 

In relation to the report prepared by the Merit Protection Review Agency, it seems to me that that plea again leads nowhere. It is said that the matter is ultra vires but it is not suggested in the pleading there was any consequence for the applicant as a result of that. I leave open at this stage the question of the proper construction of s 56 of the Merit Protection (Australian Government Employees) Act. 

It seems to me that in all those circumstances I should not grant the leave sought.  In the ordinary course I would let the matter rest there but it is important that justice be seen to be done and Mr Gillies indicated in the course of argument that there were a number of matters which, speaking loosely and using my language rather than his, could be improved.  It may well be, although I express no view about the matter, that on further consideration the pleading can be refined further in such a way as to disclose a cause of action, under one or other of the heads relied upon.  I emphasise I form no view about that matter one way or the other.  I can only deal with the pleading before me as it is put before me and it would be inappropriate for me to speculate on whether, if a particular matter was or was not pleaded or if this was varied or if that plea was varied, the matter - or one of any of the complaints made or the criticisms levelled against the pleading by the defendant - could be resolved.

It seems to me that in the circumstances I should make it clear that the application for leave to amend the statement of claim is dismissed without prejudice to the right of the applicant to make further application to deliver an amended statement of claim if he be advised.  That is a matter for the applicant.  If application is made the matter will be dealt with on its merits.  If the application is not made it will be open for the respondent then to move for judgment, there being no extant statement of claim.

Subject to what counsel may say, it seems to me the proper order to make is that the applicant’s motion, dated 12 November 1997 but filed on 13 November 1997, be dismissed and that the applicant pay the respondent’s taxed costs of and incidental to the motion and the hearing this day.  I have already expressed the view that that order is made without prejudice to such further steps as the applicant may be advised to take in relation to any further proposed amendment.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg

Associate:

Dated:             March 1998

Counsel for the Applicant:	Mr B Gillies
Solicitor for the Applicant:	Howie & Maher
Counsel for the Respondent:	Mr R R S Tracey QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 February 1998
Date of Judgment:	26 February 1998