Not so sunny - Cleret v Sunshine Coast Regional Council [2016] QSC 208

Mr Cleret was the owner and operator of a restaurant. In proceedings heard before Justice Lyons in the Supreme Court of Queensland, Mr Cleret claimed damages against Ms Brooks, a food inspector employed by Sunshine Coast Regional Council (the council) for misfeasance in public office, negligence and trespass. The factual matrix of the matter revolves around a series of inspections of Mr Cleret’s restaurant by Ms Brooks, resulting in a notice being served suspending Mr Cleret’s licence to operate pursuant to the Food Act 2006 (Qld) (the Act).

Misfeasance in public office

Mr Cleret contended that the suspension of his licence was a deleterious act to cover up for the council’s “abuse of power and irresponsible behaviour, unbecoming of an authorised person”. The imposition of the suspension without following the show cause procedures and for a period of longer than 30 days was motivated by the rush to fix the mess created by the council. Both the council and Ms Brooks engaged in punitive action with the desire to teach him a lesson for challenging their deemed authorities. The conduct was calculated to cause damage to Mr Cleret, done with reckless indifference of the Act in order to maximise the harm caused. Both Ms Brooks and the council knew that their acts were beyond their powers and involved a considerable risk of harm; alternatively, Ms Brooks and the council recklessly disregarded the means of ascertaining the true extent of their powers.

Ms Brooks and the council denied Mr Cleret’s allegations, stated that the restaurant posed an immediate and serious risk to public health and safety and that the damage suffered by Mr Cleret was not reasonably foreseeable. Ms Brooks and the council denied malice and submitted that there was no evidence from which an inference of malice could be drawn. It was however, conceded that Ms Brooks did not have the power to suspend Mr Cleret’s licence or direct him to cease trading.

After considering the available evidence, Lyons J found that the actions of Ms Brooks were not motivated by malice. She believed that she had the power to temporarily suspend Mr Cleret’s licence and in the absence of evidence to the contrary Mr Cleret failed to establish that she knew she was acting beyond of her powers. As for the council, Lyons J found that notices served upon Mr Cleret were incomplete and inaccurate. Notwithstanding this, Lyons J accepted evidence given by a council officer and found that the actions of the council were not motivated by malice and that the officer did not act knowing that his conduct was beyond the power conferred upon him.

Trespass

Mr Cleret submitted that he saw the trespasses more in terms of aggravation of the level of harassment, criminal offences and an abuse of power by the council, and did not claim relief for the cause of action. Lyons J accepted the evidence of Ms Brookes that she entered Mr Cleret’s premises for a purpose authorised by the Act and therefore found that she had not committed trespass.

Negligence and breach of duty

Mr Cleret alleged that Ms Brooks and the council had a duty to exercise their powers in a lawful manner, which they breached by consciously, wrongfully exercising their powers under the Act. Mr Cleret further alleged that the council owed him a duty of care to ensure that the provisions of the Act were complied with and to ensure that authorised persons which it retained complied with the provisions of that Act. Mr Cleret alleged that it was foreseeable that, if the council did not comply with these duties, he would suffer damage.

Ms Brooks and the council denied Mr Cleret’s allegations. As Mr Cleret’s loss was purely economic, a duty to exercise statutory powers in a lawful manner will only arise in exceptional circumstances. The duty to protect the public from an unhygienic kitchen outweighed any duty owed to Mr Cleret in relation to the procedure to be adopted at the time of suspension of the licence; Perre v Apand Pty Ltd (1999) 198 CLR 180 at 220.

Lyons J found that Mr Cleret failed to demonstrate that his loss was caused by the conduct of Ms Brooks. Accordingly, Lyons J declined to consider whether Ms Brooks, and the council to the extent to which it was vicariously liable for her actions, owed and had breached the duty of care.

This left the question of whether the council officer, Mr Brewer, was under a duty of care to ensure compliance with the provisions of the Act. Lyons J found support for the alleged duty in Northern Territory v Mengel (1995) 185 CLR 307 at 352-535. After considering case law on the issue at length, and noting the general importance of the issue, Lyons J found that he could make a decision in the matter without making a finding about the existence of the alleged duty of care. Nevertheless, Lyons J made the following observations which he considered to be relevant to the existence of such a duty in this matter:

• The alleged duty requires no more than the taking of reasonable care to ensure that council’s actions are within the powers conferred on it;
  
  
• Where a notice, authorised by statute and coming from a council requires a person to cease an activity immediately, and where non-compliance appears to be a criminal offence, there is a sense in which that person is vulnerable, or unable to protect himself;
  
  
• It is difficult to see that the risk of indeterminate liability is significant as notices of this kind are usually addressed to an individual or proprietor of an individual business;
  
  
• It is not unknown for the law to recognise that more than one cause of action might arise from the same factual matrix, nor would a duty to take reasonable care to ensure that a proposed action is within the confined of a statutory power result in a lack of coherence with administrative law remedies.

Lyons J found that Mr Cleret’s claim in negligence did not identify how the council failed to take reasonable care to ensure that it acted within its power. Based upon the evidence before him, he was not prepared to find that council breached the duty of care alleged by Mr Cleret.

Implications

The elements of the torts of misfeasance in public office and trespass are well established and Mr Cleret failed to discharge his evidentiary onus for a finding to be made in his favour.

Whether statutory authorities and councils owe a duty of care to ensure that officers act within their power is not as clear cut. Although it was not necessary for Lyons J to make a finding on this issue, after reviewing relevant authorities and noting the issue to be of general importance, he made a number of observations which indicate an openness to find the existence of a duty.

We expect that whether a duty of care is owned by statutory authorities and councils to ensure that officers act within their power will prove to be fertile ground for litigation in the future.

In the meantime, the best defence for statutory authorities and councils is ensure that the nature and extent of officers power are well known, understood and acted within.