Petersen v Nolan

In this matter, the issue was whether the appellant’s statement of claim disclosed a reasonable cause of action. The appellant made a claim against the respondent for misfeasance in public office in relation to a complaint made by the respondent to the Ipswich City Council about the appellant’s conduct as a candidate during the 2012 Queensland State election. The Court held that the pleading was defective because it did not identify the public power alleged to be misused and the fact the public official had identified herself in her capacity as a public official was insufficient to render her actions a misuse of a public power.

McMurdo and Mullins JJA and Bond J

27 March 2020

The appellant and respondent were both candidates for the same seat at the 2012 Queensland State election. [3]. At the time, the respondent was the sitting member and a Minister. [3]–[4]. The appellant brought a claim against the respondent for misfeasance in public office and, alternatively, for negligence. [3]. In her statement of claim (which was in its seventh iteration) the appellant alleged that the respondent, by making a complaint had caused Ipswich City Council to seize the appellant’s election signs and have her fined, with the intention of causing harm to the appellant. In making the complaint, it was alleged that the respondent identified herself by virtue of the public offices she held. [2]–[3], [7].

On the respondent’s application, the primary judge struck out the seventh statement of claim, gave judgment in favour of the respondent and ordered that the appellant pay the respondent’s costs on an indemnity basis. [2], [7]–[10]. The central issue on appeal was whether the appellant’s seventh statement of claim disclosed a reasonable cause of action for misfeasance in public office. [11]–[19]. The leading judgment was delivered by Mullins JA, with whom McMurdo JA and Bond J agreed.

The Court was required to determine whether the alleged complaint was an exercise of power by the respondent in public office. [12]. The appellant asserted that the fact the respondent held a public office at the time was sufficient to establish the requisite connection between the respondent’s office and the alleged harm. [12]. The primary judge had rejected those submissions, on the basis that the pleading did not identify the public power alleged to have been misused and that, even if the alleged actions occurred and the respondent had identified herself in her capacity as a public official, the pleading did not disclose an exercise of some power or authority which the respondent had by virtue of the offices she held. [7].

In endorsing the primary judge’s decision, and with reference to Calverley v Chief Constable of the Merseyside Police [1989] AC 1228 and Obeid v Lockley (2018) 98 NSWLR 258, Mullins JA noted that “the tort of misfeasance in public office involves an act done in exercise by the public officer of some power or authority that exists by virtue of the office the public officer holds”. [13]. Her Honour held that:

“On the basis of the existing law, there is not that connection between [the respondent’s] then public office as a member of Parliament and a Minister and her communication with the Council. Any complaint by [the respondent] 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.” [13].

Accordingly, there was no error in the primary judge holding that the pleading did not disclose the requisite facts to establish the tort of misfeasance in public office. [14]–[17].

The alternative claim in negligence also failed to disclose a reasonable cause of action, and so the primary judge had been correct to strike out the pleading. [18]–[19]. Justice Mullins also rejected a number of other arguments made on appeal by the appellant. In the circumstances, the primary judge had not erred in refusing to grant leave to plead and instead giving judgment for the respondent, nor in ordering indemnity costs against the appellant. [20]–[26].

In the result, the appeal was dismissed with costs. [27].

S Walpole