Express law No. 290

24 August 2020

Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198

The Federal Court has summarily dismissed a representative action alleging misfeasance in public office by current and former Commonwealth Ministers and Secretaries in relation to regional processing in Nauru. Justice Mortimer found that there was no factual basis for the pleadings concerning the respondents' state of mind, and affirmed that the mental element of misfeasance requires reckless indifference in the sense of wilful blindness as to the legality of the conduct.

Background

The applicants commenced a representative proceeding on behalf of people who were taken to Nauru and were the subject of a regional processing centre (RPC) visa applied for in their names by officers of the Commonwealth.

The claim was brought against the Hon Scott Morrison MP, the Hon Peter Dutton MP, the Hon Tony Burke MP, former Secretary Bowles, Secretary Pezzullo and the Commonwealth. The applicants alleged misfeasance in public office by the named respondents, who were said to have directed or authorised officers of the Commonwealth to act unlawfully in applying for RPC visas, doing so with reckless disregard for the means of ascertaining the lawfulness of the RPC visa applications. The Commonwealth was said to be vicariously liable for the conduct of the individual respondents. The alleged unlawfulness involved in the RPC visa applications was a lack of statutory or executive power to apply for the visas, denial of procedural fairness and breach of human rights standards.

The respondents filed an application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) and for the striking out of the entire further amended statement of claim pursuant to r 16.21 of the Federal Court Rules 2011 (Cth).

The Federal Court allowed the respondents' application for summary judgment and strike out, and refused leave to the applicants to file any amended statement of claim.

In ordering summary judgment, Justice Mortimer squarely interpreted reckless indifference as requiring subjective bad faith in the sense of wilful blindness with respect to the legality (or otherwise) of a public official's actions – that is, a determination to proceed regardless of whether the conduct in question is lawful or unlawful: see at [60]-[63], [95], [96], [99]-[105], [113]. Her Honour rejected the argument that mere awareness of some risk of unlawfulness is sufficient to establish reckless indifference: see preceding paragraph references and at [107]. Further, misfeasance will not be established where there is an alternate hypothesis consistent with an honest exercise of power: [115]-[116].

Applying these principles to the pleadings, Justice Mortimer found that the applicants had no factual basis to allege the requisite state of mind for misfeasance, and that the pleading was mere speculation. Her Honour agreed with the respondents' central argument that on all misfeasance allegations, the pleaded case was incapable of satisfying the mental element of the tort. Therefore, summary judgment should be entered for the respondents and the entire further amended statement of claim struck out, with leave refused to replead.

Implications

The judgment reaffirms that the central element of the tort of misfeasance is the abuse of public power. The Court has confirmed that misfeasance is a 'deliberate tort,' and the mental element can be made out by either targeted malice or reckless indifference. Reckless indifference cannot be equated with recklessness or negligence, rather it means deliberate blindness as to the lack of power or legal invalidity.

The case also represents a strong affirmation of the pleading burden which parties alleging misfeasance must discharge (notwithstanding modern case management principles which eschew an unduly technical approach to the identification of issues).

Text of the decision is available at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca1198

Tom Howe QC, Tim Begbie and Julia Watson appeared for the respondents, instructed by Matthew Blunn, Alison Thomson, Melinda Jackson and Madison Holdsworth.

For further information please contact:

Matthew Blunn
National Leader AGS Dispute Resolution
T 02 6253 7424
matthew.blunn@ags.gov.au

Melinda Jackson
Senior Lawyer
T 03 9242 1247
melinda.jackson@ags.gov.au

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