FEDERAL COURT OF AUSTRALIA PRACTICE AND PROCEDURE - pleadings - whether statement of claim founded a claim of misfeasance in public office, conspiracy and negligence properly pleaded - whether claim should be struck out. Merit Protection (Australian Government Employees) Act 1984: s 56 Rookes v Barnard [1964] AC 1179 referred to Lonrho Plc v Fayed [1992] 1 AC 448 referred to Northern Territory of Australia v Mengel (1996) 185 CLR 307 applied WILLIAM FREDERICK TOOMER v COMMONWEALTH OF AUSTRALIA VG 274 of 1997 GOLDBERG J MELBOURNE 22 OCTOBER 1997 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: 22 OCTOBER 1997 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The statement of claim is struck out. 2. The applicant have leave to apply by notice of motion within twenty‑one days for leave to deliver an amended statement of claim, which notice of motion is to be supported by an affidavit exhibiting the proposed amended statement of claim. 3. If the applicant applies for such leave to deliver an amended statement of claim the notice of motion shall be returnable at 9.30 am on 3 December 1997. 4. If the respondent wishes to oppose any leave sought to deliver an amended statement of claim it shall file and serve its submissions in opposition by 4.00 pm on 19 November 1997 and the applicant shall serve his submissions in answer by 4.00 pm on 26 November 1997. 5. The directions hearing be adjourned to 9.30 am on 3 December 1997. 6. The applicant pay the respondent's costs of the respondent's motion filed 15 July 1997. 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: 22 OCTOBER 1997 PLACE: MELBOURNE REASONS FOR JUDGMENT The respondent applies by notice of motion filed 15 July 1997 to strike out the applicant's statement of claim pursuant to O 20 r2 of the Federal Court Rules on the grounds that: (a) it discloses no reasonable cause of action; (b) it may prejudice, embarrass or delay the fair trial of the proceedings; (c) it is otherwise an abuse of the process of the Court. The proceeding commenced by writ filed in the High Court on 9 December 1994, it was remitted by consent to the Federal Court on 23 May 1997. The applicant says that he is relying on causes of action in conspiracy, misfeasance in public office and negligence. According to the statement of claim the plaintiff commenced employment with the Commonwealth of Australia ("the Commonwealth") in August 1968 and retired on 7 March 1980. He says that in June 1972 the Department of Health appointed him to the position of quarantine inspector in Fremantle and at the same time he was senior grains inspector for Western Australia. In April 1973 he was promoted to senior quarantine inspector for Western Australia. What is said to be his cause of action in conspiracy and misfeasance in public office is found in paragraphs 8 to 10 and also in paragraphs 11 to 13. In paragraph 8 he alleges that his retirement: "was precipitated by and/or caused by the wrongful acts of and/or the conspiracy of the servants or agents of the defendant" There are then nineteen subparagraphs which set out the wrongful acts and the content of the conspiracy by the respondent's servants and agents. Paragraphs 9 and 10 are in the following terms: "9. Each of the representations were fraudulent and/or untrue and the defendant by its servants or agents knew them to be fraudulent and/or untrue. 10. As a result the plaintiff has suffered loss and damage." These paragraphs do not disclose causes of action grounded in conspiracy or misfeasance in public office. As Lord Devlin said in Rookes v Barnard [1964] AC 1179 at 1204: "There are, as is well known, two sorts of conspiracies, the Quinn v Leathem [1901] A.C. 495 type which employs only lawful means but aims at an unlawful end, and the type which employs unlawful means". It appears that the applicant is relying upon the latter conspiracy, that is to say conspiracy to perform an unlawful act or to use unlawful means. The tort of conspiracy was recently reviewed by the House of Lords in Lonrho Plc v Fayed [1992] 1 AC 448 where the House of Lords made it clear that a conspiracy to perform an unlawful act or to use unlawful means did not necessarily involve an ingredient of there being a predominant purpose to injure the plaintiff (see also Beach Petroleum NL v Johnson (1993) 115 ALR 411, 562). However the difficulty with the applicant's pleading is that it utters the litany of "wrongful acts" and "the conspiracy" but does not in fact set out any allegations of unlawful acts or the use of unlawful means. Rather it contains a collection of facts which are set without regard to whether they set out allegations of material facts supporting a cause of action. A number of the subparagraphs of paragraph 8 cannot in any way be described as unlawful acts or the use of unlawful means. Further, there is no allegation of an intention by relevant servants or agents of the respondent to injure the applicant. There is no clear identification of relevant conspirators, nor is there a clear identification of their common objective, nor is there any identification of any overt acts undertaken in implementation of the conspiracy. The alleged cause of action is further confused by paragraph 9 which appears to categorise the alleged unlawful acts as fraudulent misrepresentations. The applicant says he is not relying upon a fraudulent misrepresentation yet that is exactly what paragraph 9 appears to assert. Paragraph 9 is not connected in any way with any of the causes of action said to be relied upon. Paragraph 10 is also, in its terms, an inadequate pleading as the applicant cannot simply utter the litany of having suffered "loss and damage" without in some way identifying what the alleged loss and damage is, and without setting out the causal connection or relationship between that loss and damage and the alleged unlawful acts or unlawful means. The tort of misfeasance in public office was considered recently by the High Court in Northern Territory of Australia v Mengel (1996) 185 CLR 307. The High Court overruled the decision in Beaudesert Shire Council v Smith (1966) 120 CLR 145 and the majority of the High Court said at 347: "The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach. It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm." Paragraphs 8, 9 and 10 of the statement of claim do not conform to, nor can they be seen to be based upon, these principles. There is not pleaded explicitly the intention of any particular public officer to cause harm to the applicant nor is it pleaded that any particular servant or agent of the respondent knew or ought to have known that any particular act was beyond power or that it involved a foreseeable risk of harm to the applicant. In the course of his submissions Mr Gillies who appeared for the applicant submitted that paragraph 8 was trying to assert that Mr Dienhoff and Dr Mathieson conspired to commit acts, some lawful, some unlawful, which culminated in the request, to and report from, the Merit Protection and Review Agency in February 1991. However, such allegations do not emerge from the statement of claim in its present form. At this stage I express no view on whether such allegations, if made, would be a proper pleading and constitute a proper cause of action. Paragraphs 11 to 13 are in the following terms: "11. The then Minister assisting the Prime Minister on 8 December 1988 requested a report pursuant to Section 56 of the Merit protection (Australian Government Employees) Act 1984. 12. Pursuant to the said request the Merit Protection Agency after enquiry produced a report dated 12 February 1991. 13. The plaintiff from the 7 March 1980 had not been an employee of the defendant thereby making the Inquiry and subsequent report conducted by the Merit Protection Agency pursuant to the request set out in paragraph 10 hereof, Ultra vires s.56 of the Merit Protection (Australian Government Employees) Act 1984." It is not clear what these paragraphs are alleging. They do not, in my opinion, raise any cause of action. Section 56 of the Merit Protection (Australian Government Employees) Act 1984 requires the Merit and Protection Review Agency, if requested by the Minister or Public Service Board, to conduct an inquiry into a decision made or action taken in relation to a Commonwealth employee's employment and to provide a report on the results of its inquiry. It is said that a report was produced by the agency, presumably on the applicant, but that the enquiry and report was ultra vires. But I ask rhetorically - what was the consequence of the report? Nothing is pleaded in this respect. Mr Gillies says the applicant relies on paragraphs 11 to 13 in aid of the conspiracy cause of action. However the statement of claim is not couched in such terms and there is also the difficulty that if the unlawful end relied on for the conspiracy is, as Mr Gillies said, the retirement of the applicant from the employment with the respondent in March 1980, how is that the events between December 1988 and February 1991 in relation to the Merit and Protection Review Agency are relevant? The final cause of action which the applicant relies upon is in negligence and is found in paragraphs 14 to 16 in the following terms: "14. Further, in the premises, the defendant owed to the plaintiff a duty of care to provide to the plaintiff a safe working environment. 15. Negligently, and in breach of the duty of care, the defendant failed to provide to the plaintiff a safe working environment. 16. As a result, the plaintiff has suffered loss and damage." This is a totally inadequate and incomplete pleading of a cause of action in negligence. It does not plead relevant material facts conformably with O 11 r2 of the Federal Court Rules, either in relation to the duty of care owed; or as to the manner in which that duty of care was breached; or as to how it is said that such loss and damage as the applicant may have suffered was causally related to that breach. The statement of claim should therefore be struck out on the basis of each of the grounds raised in the notice of motion. It is not easy to discern from the statement of claim what is the factual basis which the applicant says gives rise to a claim against the Commonwealth. However, I consider it appropriate to give the applicant the opportunity, if he wishes to take advantage of it, to see if he can come up with a proper pleading. I will therefore give the applicant the opportunity to apply within twenty‑one days for leave to deliver an amended statement of claim and if the respondent wishes to challenge the leave sought to deliver such statement of claim it should file and serve its submissions in opposition within seven days thereafter. The respondent has succeeded in obtaining the relief sought in its notice of motion which the applicant opposed and the usual order should apply, namely that the costs follow the event. Accordingly the applicant should pay the respondent's costs of the motion. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg Associate: Dated: 22 October 1997 Counsel for the Applicant: Mr W Gillies Solicitor for the Applicant: Howie & Maher Counsel for the Respondent: Mr R Tracey QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 21 October 1997 Date of Judgment: 22 October 1997