Twining v Curtis

[2009] ACTSC 106

ANTHONY ALBERT TWINING v JACQUELINE ANNE CURTIS [2009]
ACTSC 106 (2 September 2009)

CIVIL LAW – appeal from interlocutory order of the Master to a single judge of the Supreme Court – appeal from Master’s decision to strike out pleadings under r 425 of the Court Procedures Rules 2006 (ACT) on grounds of failing to disclose a reasonable cause of action – pleadings alleging misfeasance in public office – application of principles in House v The King – whether elements of tort correctly identified – whether any mistakes of fact.
CIVIL LAW – tort of misfeasance in public office – elements of tort – need to plead that defendant occupied a public office with public duties – being on the public payroll not sufficient without public duty – holding named position in public agency not sufficient without public duty – whether pleadings allege defendant held a public office – whether conduct complained of breached a public duty – whether conduct obligations under ss 10 and 13 of the Public Service Act 1999 (Cth) amount to public duties – whether s 21 of the Acts Interpretation Act 1901 (Cth) provides that all APS employees hold public offices for purposes of tort of misfeasance in public office.
CIVIL LAW – tort of misfeasance in public office – elements of tort – whether plaintiff required to be a member of the public, or a member of the public to whom the public duty concerned is owed.
CIVIL LAW – tort of misfeasance in public office – whether defendant acted beyond power in talking to plaintiff’s supervisor about plaintiff – whether conversation was an exercise of the power associated with the defendant’s public duties – whether every action done by a public office-holder who has public duties must be an exercise of the power associated with those duties.
CIVIL LAW – tort of misfeasance in public office – elements of tort – act must be done maliciously – act done in valid exercise of power, such as termination of employment, is not sufficient irrespective of harm caused – allegation of apparently accurate statements about remedies available to employees on probation not a sufficient pleading of malice.
CIVIL LAW – procedure – pleadings – tort of misfeasance in public office – need to plead causal link between defendant’s conduct and alleged harm – whether any causal link was pleaded between defendant’s actions and termination of plaintiff’s employment.
CIVIL LAW – procedure – pleadings – tort of misfeasance in public office – need to plead malice specifically under r 407(1)(j) of the Court Procedure Rules 2006 (ACT) – pleadings expressed in subjunctive mood and using double negative – no place for rhetorical flourishes in pleadings.
CIVIL LAW – procedure – pleadings – significance of “vulnerability” in relation to negligence causing economic loss – whether pleadings relating to effects on plaintiff of defendant’s alleged conduct were relevant to plaintiff’s “vulnerability”.
CIVIL LAW – tort of misfeasance in public office – whether defendant breached a public duty by…