Nyoni v Shire of Kellerberrin (No 10) [2018] FCA 1576

Nyoni v Shire of Kellerberrin (No 10) [2018] FCA 1576

The respondents’ actions, particularly the sending of an email and accompanying letter by the CEO with intention to injure the applicant's professional reputation and encourage professional regulators to take adverse action, constituted targeted malice and misuse of public office thus warranting an award of general, aggravated, and exemplary damages. The reputational damage was presumed from the nature of the communication and its regulatory audience, meriting general damages; the intentionally harmful mode of conduct supported aggravated damages; and the penal need to deter clear abuse of public power required exemplary damages.

Parties
Applicant: Emson Nyoni; First Respondent: Shire of Kellerberrin; Second Respondent: Darren Friend; Third Respondent: Stan McDonnell; Fourth Respondent: Frank Peczka; Fifth Respondent: Peter Mitchell
Jurisdiction
Australia
Judgment Date
19 October 2018
Procedural Posture
Tort (misfeasance in Public Office) / Assessment of Damages After Appellate Remitter
Outcome
Damages awarded to applicant against first and second respondents (joint and several liability); costs reserved.
Legal Topics
Misfeasance in Public Office, Damages Assessment, Local Government Liability
Torts Public Law Misfeasance in Public Office Damages Assessment Local Government Liability

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Parties

Emson Nyoni

Applicant

Shire of Kellerberrin

First Respondent

Darren Friend

Second Respondent

Stan McDonnell

Third Respondent

Frank Peczka

Fourth Respondent

Peter Mitchell

Fifth Respondent

Procedural Posture

Tort (misfeasance in Public Office) / Assessment of Damages After Appellate Remitter

Legal Issues

  1. 1 What is the appropriate assessment of general, aggravated, and exemplary damages for the tort of misfeasance in public office committed by a local government officer and the council against the applicant?

Ratio Decidendi

The respondents’ actions, particularly the sending of an email and accompanying letter by the CEO with intention to injure the applicant's professional reputation and encourage professional regulators to take adverse action, constituted targeted malice and misuse of public office thus warranting an award of general, aggravated, and exemplary damages. The reputational damage was presumed from the nature of the communication and its regulatory audience, meriting general damages; the intentionally harmful mode of conduct supported aggravated damages; and the penal need to deter clear abuse of public power required exemplary damages.

Court Disposition

Damages awarded to applicant against first and second respondents (joint and several liability); costs reserved.

Orders

  • The first and second respondents pay the applicant damages in the total sum of $30,000, comprising $15,000 general damages, $5,000 aggravated damages and $10,000 exemplary damages, to be paid by them on a joint and several basis.
  • There be a stay on the operation of order (1) pending further order of the Court.