SUPREME COURT OF QUEENSLAND
Petersen v Nolan  QCA 56
Appeal No 10668 of 2019
SC No 612 of 2018
Court of Appeal
General Civil Appeal
Supreme Court at Brisbane –  QSC 216 (Martin J)
27 March 2020
6 March 2020
McMurdo and Mullins JJA and Bond J
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where primary judge struck out the appellant’s seventh statement of claim and gave summary judgment for the respondent – where statement of claim disclosed no reasonable cause of action – where no further material disclosed suggesting that the appellant could plead a cause of action known to law – whether the appellant should have been given another opportunity to replead
TORTS – MISCELLANEOUS TORTS – MISFEASANCE IN PUBLIC OFFICE – where the respondent was a member of parliament and Minister – where the appellant was contesting the seat for which the respondent was the sitting member – where the appellant alleged the respondent complained to local council about the appellant’s election signs and the appellant was fined – where the appellant unable to identify public power alleged to have been misused by the respondent in complaining to the council – whether use of title attached to public office is sufficient to ground a claim for misfeasance in public office
Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293
Calveley v Chief Constable of the Merseyside Police  AC 1228, cited
Northern Territory v Mengel (1995) 185 CLR 307;  HCA 65, considered
Nyoni v Shire of Kellerberrin (2017) 248 FCR 311;  FCAFC 59, considered
Obeid v Lockley (2018) 98 NSWLR 258;  NSWCA 71, cited
Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth of Australia & Ors  QSC 175, considered
The appellant appeared on her own behalf
J B Rolls for the respondent
The appellant appeared on her own behalf
Bold Lawyers for the respondent
McMURDO JA: I agree with Mullins JA.
MULLINS JA: The appellant Dr Petersen appeals against the striking out of her seventh statement of claim, the judgment given in favour of the respondent Ms Nolan, and the order that Dr Petersen pay Ms Nolan’s costs on the indemnity basis. These orders were made by the learned primary judge on 9 September 2019: Petersen v Nolan  QSC 216 (the reasons).
The nature of the proceeding
Dr Petersen claimed damages against Ms Nolan for misfeasance in public office and/or negligence. Dr Petersen and Ms Nolan were both candidates at the 2012 Queensland State election with Dr Petersen contesting the seat of Ipswich as an independent candidate and Ms Nolan, as the sitting member, contesting the same seat as the endorsed Labor candidate. Dr Petersen alleged that Ms Nolan caused Ipswich City Council to seize Dr Petersen’s election signs and have her fined and thereby intentionally aimed to cause harm to Dr Petersen. Dr Petersen made a series of allegations in the statement of claim against Ms Nolan as to the conduct she alleged Ms Nolan engaged in that was alleged to be dishonest and misleading in relation to Dr Petersen’s election signs.
Apart from the allegations based on alleged misuse by Ms Nolan of her office, Dr Petersen pleaded that Ms Nolan owed her a duty of care in her capacity as the member for Ipswich and a Minister of the Government not to harm Dr Petersen.
The damages that Dr Petersen claimed from Ms Nolan were described in the statement of claim as $3.42m for misfeasance, $20,000 for indignity, $50,000 for damage to reputation, $50,000 for loss of liberty, estimated loss of earnings to date of trial of $800,000, estimated loss of earning capacity in the future of $1.5m and punitive or aggravated damages of $1m. The additional or alternative claim for damages for negligence was for like amounts, except the sum of $3.42m was claimed for negligence rather than misfeasance.
Ms Nolan’s defence had been filed on 13 February 2018 in response to the original statement of claim filed on 16 January 2018. After Dr Petersen had filed an amended claim and her fifth statement of claim on 29 March 2019, Ms Nolan filed an application on 16 April 2019 to have that amended claim and the fifth statement of claim struck out pursuant to s 171 of the Uniform Civil Procedure Rules 1999 (Qld), judgment entered pursuant to r 293 of the UCPR and an order for costs of the proceeding, including the costs of the application, to be assessed on the standard basis. Dr Petersen then filed the sixth statement of claim on 20 May 2019 and the seventh statement of claim on 21 May 2019. Ms Nolan’s application was heard by the primary judge on 22 May 2019 in relation to the seventh statement of claim.
At  of the reasons, the primary judge identified the five elements about which there is general agreement that they constitute the tort of misfeasance in public office, based on Northern Territory v Mengel (1995) 185 CLR 307, 345-348, and observed at  of the reasons that Dr Petersen did not identify anywhere in the pleading the public power alleged to have been misused. At  of the reasons, the primary judge dealt with each of the matters that Dr Petersen put forward in her submissions (even though they were not pleaded) in an attempt to show that Ms Nolan’s actions were the exercise of a power that was an incident of the office she held. Dr Petersen asserted that when Ms Nolan made demands of the council, she identified herself, used her electorate office, email address and her ministerial email address, used her parliamentary telephone, signed documents as the member for Ipswich and as a Minister, and that she was acting as such when she did those things. The primary judge concluded that, even assuming that the alleged actions did occur, it still did not disclose an exercise of some power or authority which Ms Nolan had by virtue of the offices she held.
The primary judge noted at  of the reasons that the pleading did not disclose any basis to support that a member of Parliament or a Minister owed a duty of care of the type pleaded to Dr Petersen. Although Dr Petersen had framed her alternative claim in terms of negligence, the primary judge observed at  of the reasons that nothing in the pleading disclosed negligence, as the allegations in the pleading were concerned with intentional acts. It was also noted at  of the reasons that there was no evidence which supported in any way Dr Petersen’s allegations that the seizure of her signs and the fine from the Council were the result of arrangement, demand or any other form of persuasion by Ms Nolan.
On the basis Dr Petersen had seven attempts to formulate a viable statement of claim, the primary judge concluded at  of the reasons that “It does justice to no one to allow for this to be repleaded”. The reason for giving summary judgment was set out in  of the reasons that there was no real prospect of Dr Petersen succeeding on all or a part of her claim and there was therefore no need for a trial, in the absence of any viable course of action or any evidence which suggested that some other cause of action might exist. The reason the primary judge ordered costs against Dr Petersen on an indemnity basis was set out in  of the reasons that it was a case which was doomed to fail and that it had such a remote prospect of success “it should never have been brought”.
The reasons were published in court on 9 September 2019, when the orders set out in the reasons were made. Dr Petersen was not present in the court when the reasons were published and the orders made.
Grounds of appeal
There are 11 grounds of appeal set out in the notice of appeal. There is some duplication in the grounds. They can be summarised as follows:
the primary judge erred in finding that Dr Petersen’s statement of claim disclosed neither a cause of action for misfeasance in public office nor an action for negligence;
the primary judge erred in denying Dr Petersen the opportunity to replead and in striking out the seventh statement of claim;
the primary judge erred in finding that Dr Petersen was “content to proceed” with responding to the application;
there was a denial of natural justice, as Dr Petersen was denied the opportunity to consider and respond to relevant material;
the primary judge relied on inaccurate information provided by the respondent;
the primary judge erred by awarding costs to the respondent and awarding them on the indemnity basis;
there was a denial of natural justice, in that Dr Petersen was denied the opportunity to be present for the judgment.
Did the seventh statement of claim disclose causes of action?
The issue that was before the primary judge was whether, even if Ms Nolan had made a complaint to the Council about Dr Petersen’s election signs and that prompted the Council to take action, the complaint by Ms Nolan was an exercise of power by her in a public office. Dr Petersen’s submission was that Ms Nolan was the holder of a public office at the time the complaint was made to the Council and there was therefore the requisite connection between her office and the conduct that resulted in the harm to Dr Petersen.
As the primary judge explained in the reasons at  by quoting from Calveley v Chief Constable of the Merseyside Police  AC 1228, 1240, the tort of misfeasance in public office involves an act done in the exercise by the public officer of some power or authority that exists by virtue of the office the public officer holds. On the basis of the existing law, there is not that connection between Ms Nolan’s then public office as a member of Parliament and a Minister and her communication with the Council. Any complaint by Ms Nolan to the Council was not an exercise of her authority or power by virtue of being the sitting member or a Minister. It is the exercise or the purported exercise of the power or authority of public office that is the essence of the tort of misfeasance in public office. As Bathurst CJ (with whom Beazley P and Leeming JA agreed) observed in Obeid v Lockley (2018) 98 NSWLR 258 at , the tort of misfeasance in public office “is designed to provide redress for acts done by public officers in abuse or misuse of powers conferred on them for the purpose of their public duties”.
As noted at  of the reasons, the primary judge was cognisant that Dr Petersen was advancing an argument to the effect that the law may develop to preclude a public official from avoiding liability for a misfeasance on the basis that the public official’s acts do not involve the exercise of the public power. That argument was developed on appeal by Dr Petersen in reliance on Nyoni v Shire of Kellerberrin (2017) 248 FCR 311 to assert the tort of public misfeasance in public office may be widened to include the use of a title attached to the public office rather than the exercise of a power. Nyoni was not such a case. In Nyoni the Chief Executive Officer and the Shire were held to have committed the tort of misfeasance in public office, as the CEO’s impugned communications to the regulatory authorities about the only pharmacy operating in the Shire that was an essential service for the Shire were about matters that directly affected the Shire and constituted the exercise of power in public office.
Dr Petersen also relies on Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth of Australia & Ors  QSC 175 where Peter Lyons J was not prepared to refuse the plaintiff leave to amend the statement of claim where the defendants submitted that the proposed claim for damages for misfeasance in public office must fail. Dr Petersen relies particularly on  where Peter Lyons J stated:
“Having regard to the cases which have been discussed, it does not seem to me that I can safely conclude that the plaintiff’s claim for damage for misfeasance in public office must fail, because the plaintiff does not allege conduct of the fourth defendant which amounted to a purported exercise of power.”
That statement has to be understood in the context of the issues that arose in Pro Teeth. It was the conduct of the fourth defendant who held a position with the third defendant, the Australian Competition and Consumer Commission, that was relevant. The fourth defendant in the course of his duties made a demand of the plaintiff to recall the plaintiff’s teeth whitening products and recommended to the second defendant (who was the relevant Minister) that the plaintiff’s products be compulsory recalled without delay and without a conference process that was provided for by the Competition and Consumer Act 2010 (Cth). The Minister acted on the recommendation. The plaintiff alleged that the fourth defendant’s recommendation in favour of the compulsory recall was a wilful abuse of his public function and the decision of the Minister to exercise the powers of recall was unlawful, because natural justice was not afforded to the plaintiff in giving him a hearing in the conference process. The main issue was whether the making of a recommendation by the fourth defendant to the second defendant was an exercise of power that could be the subject of the tort of misfeasance in public office and, after a survey of the authorities (at -) Peter Lyons J did not conclude that the making of a recommendation could not constitute the tort of misfeasance in public office. Peter Lyons J was also not satisfied (at -) that the tort of misfeasance in public office could not apply to the purported exercise of public power by the fourth defendant, if it were invalid due to a denial of natural justice. It was also conceded by the defendants that a failure to act, rather than some positive conduct, might come within the scope of the tort. The issue of whether the fourth defendant would be found to be the holder of a public office (which was accepted at  to be an element of the cause of action) was left for the trial of the action. The statement at  of the reasons is therefore a rejection of the defendants’ arguments for why the leave to amend the statement of claim should not be given, rather than a definitive statement that a purported exercise of a power is not required for the tort of misfeasance in public office.
The authorities do not support Dr Petersen’s speculation, should it be relevant, as to what the law might become. There was no error on the part of the primary judge in finding that Dr Petersen’s pleading did not disclose the constituent facts to pursue the tort of misfeasance in public office against Ms Nolan.
The mere fact that Ms Nolan was a member of parliament and a Minister of the Government who was seeking re-election in the same seat in which Dr Petersen was a candidate did not give rise to a duty of care not to harm Dr Petersen in the course of the election campaign. In any case, as the primary judge found, the allegations that were pleaded by Dr Petersen were of intentional acts and not negligent acts.
There was no error in the primary judge’s conclusion that the seventh statement of claim did not disclose a reasonable cause of action.
Should Dr Petersen have been given the opportunity to replead?
It was compelling that Dr Petersen was on her seventh statement of claim, when the application to strike out the statement of claim was heard. There was nothing further that was disclosed in the material before the primary judge that suggested that, if given another opportunity, Dr Petersen could plead a cause of action that was known to law. There was no error in these circumstances in the primary judge’s refusal to allow Dr Petersen to replead. The giving of summary judgment in favour of Ms Nolan was the consequence of the refusal to allow Dr Petersen to replead.
Was Dr Petersen content to proceed with the hearing of the application?
The transcript of the hearing before the primary judge revealed that there may have been a prior request by Dr Petersen of Ms Nolan to agree to an adjournment of the application, but Dr Petersen expressly informed the primary judge that “The medical certificate now is superfluous because we’re continuing on”. That is no doubt why the primary judge recited at  of the reasons that:
“Ms Petersen originally sought that this hearing be adjourned on the basis of ill-health but, when the matter came on, she was content to proceed.”
The primary judge did not err by stating that Dr Petersen was content to proceed, when that reflected what happened.
Was there a denial of natural justice?
There are two aspects in which Dr Petersen alleges she was denied natural justice.
The first aspect is that Dr Petersen complains that she did not have an opportunity to carefully consider the affidavit of Mr Wright (who was Ms Nolan’s solicitor) that was filed on 15 May 2019. Dr Petersen asserts that she did not have time to peruse adequately the affidavit that included a copy of the Magistrates Court file in relation to the legal proceeding brought by Dr Petersen against the Council to recover her electoral signs and banners taken by the Council. First, before the primary judge Dr Petersen relied on her affidavit filed on 20 May 2019 in which she complained of the delay in receiving Mr Wright’s affidavit and requested an adjournment of the application, but she did not then pursue the adjournment at the hearing of the application. Second, there was little in the exhibits to Mr Wright’s affidavit that was relevant to the way in which the primary judge disposed of the application. Because of the fundamental defects in Dr Petersen’s seventh statement of claim, further opportunity to respond to Mr Wright’s affidavit would not have affected the outcome of the application.
The second aspect of the denial of natural justice arises from the fact that Dr Petersen was apparently outside the courtroom and not called in when the reasons were published and the orders made by the primary judge. Whether Dr Petersen was present or not made no difference whatsoever to the making of the orders that were set out in the reasons that were published on that occasion. Dr Petersen’s complaint does not amount to a denial of natural justice.
Did the primary judge rely upon inaccurate information provided by Ms Nolan?
Dr Petersen relies on an assertion made by her during the course of the hearing of the application which was to the effect that she had evidence that Ms Nolan “decided to arrange to have my signs seized and me fined before I had even printed my election signs”. When Dr Petersen endeavoured to expand on this allegation that was not the subject of any affidavit during her submissions, the primary judge interrupted her and explained that the court proceeds on the basis that prima facie the allegations in the statement of claim are accepted and that Dr Petersen should confine her argument to the factual matters in the statement of claim. That was the appropriate course to take on the strike out application. It is not proper for Dr Petersen to pursue a ground of appeal based on factual matters of which no evidence was properly before the primary judge.
Did the exercise of the discretion in relation to costs miscarry?
Although the application as originally filed sought costs on a standard basis, Ms Nolan’s written submissions before the primary judge sought costs on the indemnity basis, on the basis Dr Petersen should have known she had no prospect of success in pursuing the proceeding. In the circumstances, where the application proceeded in respect of the seventh statement of claim which had fundamental defects, it cannot be said that there was an error in the primary judge’s decision to order costs against Dr Petersen on the indemnity basis.
The orders which should be made are:
- Appeal dismissed.
- The appellant must pay the respondent’s costs of the appeal.
BOND J: I agree with the reasons for judgment of Mullins JA and with the orders proposed by her Honour.
- Published Case Name:
Petersen v Nolan
- Shortened Case Name:
Petersen v Nolan
 QCA 56
McMurdo JA, Mullins JA, Bond J
27 Mar 2020
- Selected for Reporting:
No Litigation History