Misfeasance and Limitation: Whangarei District Council v Daisley

The role of Council officers in maintaining and considering Council resource consent records when making enforcement decisions was the subject of an appeal before the Court of Appeal. This article briefly addresses the key findings in that decision.

In May this year, the Court of Appeal released its decision in Whangarei District Council v Daisley.¹ The Court allowed the appeal in part, setting aside the High Court's finding that the Council was liable for the misfeasance of its officers and an award of exemplary damages. The High Court's findings as to negligence and a duty of care owed in respect of the holding and provision of information as to resource consents remain unaffected. As does the related damages awarded against the Council for that negligence.  

In a previous update, we addressed the High Court's earlier decision. In summary, the case concerns an ongoing dispute between Mr Daisley and the Whangarei District Council as to the use of Mr Daisley's property for quarrying activities. In the High Court, Toogood J found that the Council owed Mr Daisley a duty to exercise reasonable care and skill in keeping records of resource consents available for inspection, in the provision of information about them, and in making reasonably diligent inquiries into their existence whenever that was in issue. That finding was not challenged on appeal. The matters before the Court of Appeal relate to whether the alleged breach of that duty was a continuing breach, along with a challenge to the High Court's finding of liability for misfeasance of public office.

The Court of Appeal considered that the High Court erred in its application of the doctrine of continuing breach, although ultimately it did not impact on the finding of quantum.² The Court outlined that a continuing cause of action is one which arises from repetition of acts or omissions of the same kind. If the wrong is continuing on a daily or other regular basis, the cause of action accrues afresh on a continuing basis. The cause of action does not continue merely because loss from the original wrong continues to accrue within the limitation period. This decision accordingly provides a useful summary of this limitation issue.

In respect of the successful part of the Council's appeal, the Court set out that misfeasance of public office is an intentional tort which has at its base conscious disregard for the interests of those affected by official decisions.³ The Court of Appeal considered this standard was not met and therefore the Council was successful in having the finding as to misfeasance of public office and the exemplary damages award attached to that finding, set aside.