Ea v Diaconu [2020] NSWCA 127

Ea v Diaconu [2020] NSWCA 127

The applicant's misfeasance in public office claim against the first and third respondents was not hopeless or doomed to fail. Although the pleaded conduct was not a purported exercise of a statutory or common law power or duty, it was arguable that the first respondent, by reason of her office and role as Australian Federal Police case officer, exercised a de facto power or capacity to influence the jury that was incident to her public office. Because the limits of the tort were unsettled, the claim should not have been summarily dismissed. The malicious prosecution claim and the proceedings against the second respondent remained summarily dismissed because they were not pressed on appeal.

Jurisdiction
Australia
Judgment Date
30 June 2020
Procedural Posture
Application for Leave to Appeal From Summary Dismissal of Tort Proceedings / Court of Appeal; Leave to Appeal Granted and Appeal Determined
Outcome
Leave to appeal granted; appeal dismissed against the second respondent with costs; appeal allowed against the first and third respondents; primary summary dismissal orders set aside and substituted orders made.
Legal Topics
['misfeasance in Public Office' 'malicious Prosecution' 'summary Dismissal' 'public Power or Duty' 'australian Federal Police Officer' 'de Facto Power Incident to Public Office']
['tort' 'civil Procedure' 'public Law'] ['misfeasance in Public Office' 'malicious Prosecution' 'summary Dismissal' 'public Power or Duty' 'australian Federal Police Officer' 'de Facto Power Incident to Public Office']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Summary Dismissal of Tort Proceedings / Court of Appeal; Leave to Appeal Granted and Appeal Determined

Legal Issues

  1. 1 ["Whether the primary judge erred in finding that the applicant's claim for misfeasance in public office against the first respondent was hopeless and doomed to fail." 'Whether the alleged conduct of an Australian Federal Police case officer in court was capable of being an exercise or purported exercise of public power, authority, duty or function for the tort of misfeasance in public office.' 'Whether the proceedings should have been summarily dismissed under r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).']

Ratio Decidendi

The applicant's misfeasance in public office claim against the first and third respondents was not hopeless or doomed to fail. Although the pleaded conduct was not a purported exercise of a statutory or common law power or duty, it was arguable that the first respondent, by reason of her office and role as Australian Federal Police case officer, exercised a de facto power or capacity to influence the jury that was incident to her public office. Because the limits of the tort were unsettled, the claim should not have been summarily dismissed. The malicious prosecution claim and the proceedings against the second respondent remained summarily dismissed because they were not pressed on appeal.

Court Disposition

Leave to appeal granted; appeal dismissed against the second respondent with costs; appeal allowed against the first and third respondents; primary summary dismissal orders set aside and substituted orders made.

Orders

  • ['Grant leave to appeal.' 'Appeal dismissed against the second respondent with costs.' 'Appeal allowed against the first and third respondents.' 'Set aside orders 1 and 2 made by the primary judge on 3 July 2019.' 'Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), summarily dismiss the...