Disconnected Electricity Sparks Tort of Misfeasance

NYONI v SHIRE OF KELLERBERRIN [2017] FCAFC 59

Facts:

The claim commenced when an electrician advised Mr. Friend, in the position as CEO of the Shire, that he intended to disconnect the electricity to Mr. Nyoni’s pharmacy. It was common ground that the disconnection was carried out without the authority of the supplier of the electricity to Nyoni’s pharmacy.

Friend sent an official email from his office, using the Shire’s email account bearing his name, official position, to give two Government departments (the Department of Health Western Australia and the Pharmaceutical Council) a basis to act against the Nyoni. Both departments considered that the continuous supply of electricity to registered pharmacy premises was essential to the provision of a professional pharmacy service and Nyoni was at risk of having his pharmaceutical licence suspended if the supply was disconnected.

The action taken by Friend undermined Nyoni’s ability to act as a professional and licensed pharmacist, and purposefully left the impression that Nyoni was to blame for the disconnection of the electricity. Friend did not advise the departments that the disconnection was not attributable to any default by Nyoni. Nyoni alleged that Friend communicated misleading information to the departments. Consequently, each of the departments was misled into believing that the disconnection had occurred by reason of the fault of Nyoni.

In the Federal Court at first instance, Justice Siopis dismissed the offence of misfeasance in public office against the Shire. He found that the Respondent had not acted in the exercise of powers attached to public office and the offence of misfeasance was not made out. Nyoni appealed to the Full Federal Court of Appeal.

Held:

The Court of Appeal held that the respondents had committed the tort of misfeasance in public office. Both Friend and Shire, sought to undermine Nyoni’s ability to act as a qualified pharmacist.

Friend’s malicious intention was to be imputed to his employer, the Shire. That is because, first, Friend was acting consistently with the Shire’s campaign to harm Nyoni and, second, in pursuing a complaint against Nyoni he was acting as the Shire, not merely as its representative. His was the mind of the Shire for that purpose, so that he was personally liable and, because he was “the hands and brains” of the Shire, the Shire became directly (and not vicariously) liable for any misfeasance in public office by reason of the same acts of Friend.