Government and Administrative Law

Respond to creditors’ demands, stat!

20 September, 2018

A claim against Sunshine Coast Regional Council for misfeasance in public office, trespass and negligence; Do councils and statutory authorities owe a duty of care to ensure officers’ act within power?

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.


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 352-535After 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.


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.

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Canadian Court elevates thumbs-up emoji to signature status

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After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. 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Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

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The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. 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