Similar wailing and gnashing of teeth occurred in the Butson/Polar matter. The outcome of all the Federal Court claims and appeals in that matter is a neat compendium of the duties that CASA and its officers
don’t have.
Polar and Mr Butson claimed that CASA owed them a common law duty to take reasonable care in the exercise of CASA’s statutory powers. Polar and Mr Butson also claimed that CASA owed them a common law duty not to act beyond power, intending to cause harm to either Polar or Mr Butson, or knowing that their acts were beyond power and that harm to Polar or Mr Butson was foreseeable, or recklessly indifferent (a) to whether their acts were beyond power and (b) to the likelihood of harm to Polar and Mr Butson.
The Federal Court held that the duty as pleaded did not exist.
In all the circumstances, it cannot be said to be open to the applicants upon the [statement of claim] to prove the facts at trial which would constitute a reasonable cause of action in negligence against the respondents. In so far as the [statement of claim] endeavours to plead negligence against the respondents, this pleading should be struck out.
Polar and Mr Butson also claimed that CASA owed them a statutory duty to exercise CASA’s statutory powers lawfully, reasonably and in “good faith” for the purposes for which those powers were given.The Federal Court held that:
[T]here is no statutory or common law duty of the kind alleged in the statement of claim, to the extent that these paragraphs plead breach of statutory duty. Furthermore, there is no basis for a claim that [Terrence Farquharson, Garry Presneill, Robert Collins, Jim Marcolin, Peter John and Allan Cook] were under any personal duty under the Act that would support a cause of action of this kind against them. The pleading of breach of statutory duty should be struck out in accordance with these reasons.… Further, it is plain enough that there is no tenable basis on which Polar and Mr Butson could bring an action in tort against CASA and the other respondents for breach of a general duty to act in good faith.
Polar and Mr Butson also claimed that CASA owed a common law duty generally to the same effect as one of the above claims, but also involving a common law duty
not to exercise CASA’s statutory powers “in such a way as unlawfully and intentionally to interfere with the trade or business” of Polar or Mr Butson.
The Federal Court held that:
[T]he cause of action described as wrongful interference with trade or business interests should be struck out.
Polar and Mr Butson also claimed that Terrence Farquharson, Garry Presneill, Robert Collins, Jim Marcolin, Peter John and Allan Cook were guilty of “misfeasance in public office” because:
(1) their knowledge of the limits of their powers was to be inferred from their position and experience;
(2) their knowledge of the likely consequences of their conduct was similarly to be inferred from their position and experience;
(3) their intention to bring about those consequences was in turn to be inferred from that knowledge, the actions themselves and the “pattern of conduct” described in the claim;
(4) their reckless indifference was to be inferred “from the conduct of CASA and the officers of CASA taken as a whole” as set out in the claim and from the “pattern of conduct” set out in the claim.
The Federal Court held that:
There is nothing that supports the hypothesis that the respondents had the intention or acted with reckless indifference as claimed, and this must be established if the cause of action is to be made out. … The pleadings reveal no more than that CASA and its officers differed with Polar and Mr Butson as to the correct exercise of CASA’s statutory powers and that, by accepting an enforceable voluntary undertaking under the CAA, the matter might be resolved in conformity with CASA’s understanding of its obligations.
Further, the pleadings, as particularised, fall well short of supporting any claim against the individual respondents of misfeasance in public office… The pleading as against the individual respondents is thus fundamentally deficient. Even if Polar and Mr Butson were to establish legal error in the relevant exercises of statutory power, this would do no more than support a finding of deficient administration. …
Accordingly, the applicants’ pleading of misfeasance in public office is embarrassing within the meaning of the Federal Court Rules and should also be struck out.
[All bolding added]
I realise the Federal Court is replete with lazy judges who couldn’t possibly see behind CASA’s nefarious machinations and breaches of the Legal Services Directions, but its decisions are nonetheless the law.