Ea v Diaconu

(2020) 102 NSWLR 351; [2020] NSWCA 127

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Misfeasance in public office
3. › Elements of the tort
4. › Identification of public power or duty
5. › Whether de facto power incident to public office sufficient
6. › Whether capacity to act as incident of office constitutes exercise of public power
7. › Whether conduct of police officer in court as case officer capable of constituting exercise of public power
1. Tort
2. › Misfeasance in public office
3. › Elements of the tort
4. › Fourth element — purported discharge of public duties
5. › Varying terminology in authorities
6. › Whether boundaries of element settled
7. › Whether tort confined to exercise of statutory or prerogative power
1. Practice and Procedure
2. › Summary dismissal
3. › Whether statement of claim disclosed reasonable cause of action
4. › Caution in utilising summary processes where question of legal principle unsettled
5. › Whether summary dismissal appropriate where limits of tort unsettled
6. › Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)

Quick Take

Practitioners alleging misfeasance in public office should note that the tort may not be confined to the exercise of statutory or prerogative powers, and that a de facto power — a capacity to act that is an incident of a public office — may arguably satisfy the 'public power' element, though this remains to be definitively resolved.