Misfeasance in Public Office: Obeid appeal dismissed

Misfeasance in public office is the common law’s only public law tort. Only “public officials” can commit it, and they must have acted unlawfully in the sense that they exceeded or misused a public power or position.

Today the Court of Appeal (Bathurst CJ, Beazley P and Leeming JA) examined the ambit of this tort in Obeid v Lockley [2018] NSWCA 71. They dismissed the appeal of the trial judge (Hammerschlag J) brought by the Obeid family against two ICAC “investigators” (Lockley and Grainger).

A copy of the judgment is here.

The proceedings came about in the context of the ICAC investigation, “Operation Jasper”. It concerned an investigation of a company associated with the Obeid family.

Edward Obeid and his three sons brought proceedings in the Supreme Court of New South Wales alleging that Mr Lockley and Mr Grainger had committed the tort of misfeasance of public office. By way of background, in 2011, Investigators Lockley and Grainger had conducted a search warrant at the Drumoyne premises of the Obeid company. Certain documents were seized. Some documents were merely recorded on a video. Two of the video recorded documents were used in the ICAC inquiry by Senior Counsel Assisting during his cross examination of Mr Obeid. The next day, an article about the inquiry appeared in the Sydney Morning Herald. 

The Obeids claimed that Lockley and Grainger lacked power under the warrant to video record the documents in question and that they were recklessly indifferent to a risk that the Obeids would suffer harm, and which they claimed they had in fact suffered (reputational and financial).

Hammerschlag J dismissed the claim on the basis that Lockley and Grainger were not “public officers”.  He also found that Lockley and Grainger were either not aware of nor recklessly indifferent for the purposes of the tort, and they could not have reasonably foreseen any risk of harm to the Obeids.

On appeal

His Honour Chief Justice Bathurst wrote the main judgment. It contains extensive review of the authorities.

The main issues on appeal were:

  1. Were Lockley and Grainger “public officers” for the purposes of the tort of misfeasance of public office.
  2.  Were Lockley and Grainger aware of, recklessly indifferent to, or could have reasonably foreseen a risk of harm to the Obeids.
  3. Whether the conduct of Lockley and Grainger caused damage to the Obeids.

Public officer

The Court held that Lockley and Grainger were “public officers” for the purposes of the tort (contrary to Hammerschlag J).  The Court stated that a “public officer” includes a person who by virtue of their position, is entitled to exercise the executive powers in the public interest. Lockley and Grainger were acting in their capacity while executing the search warrant and were exercising public power in doing so.

(at [103]): This review of the Australian authorities demonstrates two matters. First, the tortfeasor must be a “holder of a public office”. Second, the act complained of must be the exercise of a public power. However, the cases provide no clear statement of what constitutes the “holding of a public office”, or whether the power exercised has to be “attached” to the public office, or whether it is sufficient that the public officer by virtue of their position is entitled or empowered to perform the public acts in question. However, in my view, the power does not have to be expressly attached to the office.

(at [113]):  It may be that, on the present state of the authorities in this country, the concept of “public office” is not as broad as suggested in some … recent United Kingdom authorities. The concept clearly would not include all public employees, particularly those with minimal responsibilities. However, it does not seem …that the tort of misfeasance in public office is confined only to a person appointed to a particular statutory office which expressly confers statutory powers and responsibilities… Such a narrow definition of “public officer” would defeat the rationale of the tort … that “executive and administrative power ‘may be exercised only for the public good’ and not for ulterior or improper purposes”.

(at [114]): a “public officer” would … include persons who, by virtue of the particular positions they hold, are entitled to exercise executive powers in the public interest. If such an entitlement is conferred on them and they misuse the power, they may have committed the tort and be liable for damage … result[ing] from their conduct.

Recklessly Indifferent / Damage caused?

The Court held that it was not sufficient to prove that the risk of harm was reasonably foreseeable. A detailed review of authorities both within Australian and overseas was considered in respect of this point. The Court held that the Obeids would have had to prove that Lockley and Grainger caused the contents of the documents to be recorded and they were aware that such a recording would likely cause harm to the Obeids or that they were recklessly indifferent to such a risk of harm. They did not do so.


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