LAWS1003A Lecture Notes - Lecture 7: Port Stephens Council, All England Law Reports, Logan City
2 Jul 2018
School
Department
Course
Professor
0Misfeasance in Public Office:
Misfeasance in public office is a tort that aims to protect the interest “not to be injured by
government officials mis-using their powers.” This is a substantive intentional “minor” tort.
Element of the Tort Northern Territory of Australia
v Mengel (1996) 185 CLR 307
Deane J
Three Rivers District Council v
Governor and Company of the
Bank of England (No 3) [2003]
2 AC 1
Lord Steyn
Position of the defendant (iii) “Public officer” (1) “Public officer”
Characterisation of the way the
defendant has acted
(iv) “In the purported discharge
of his or her public duties”
(2) “Exercised power as a public
officer”
Legal validity of the exercise of
power
(i) An invalid or unauthorised
act
(3) (a) “targeted malice”- ie
power exercised, not for the
purpose it has been given, but
to inflict harm onto the
plaintiff- this would be invalid;
(b) an act which goes beyond
power- this would be
unauthorised
Mental state of the defendant (ii) done maliciously (3) If (a) were established, this
would automatically satisfy
requirement of malice; if (b),
then what is required is that
“the officer knows or is reckless
as to the fact that the act is
beyond power, and the act will
foreseeably harm the plaintiff
Result of act (v) causes loss or harm to
plaintiff
(4) Damage is caused to
plaintiff which is not too
remote
As evident, UK and Aus much alike- though we use Deane J.
Take note of competing interests being weighed up in these cases; HC commented on this in Sanders
v Snell (1998) 196 CLR 329:
[37] [37] Questions of holding public officials liable for acts done apparently in
furtherance of their duty raise very different considerations from those that may arise in relation to
economic torts committed by private persons. Misfeasance in public office is concerned with misuse
of public power. Inappropriate imposition of liability on public officials may deter officials from
exercising powers conferred on them when their exercise would be for the public good. But too
narrow a definition of the ambit of liability may leave persons affected by an abuse of public power
uncompensated. The tort of misfeasance in public office must seek to balance these competing
considerations. Not surprisingly, identifying the intention with which the public official acts has a
prominent place in striking that balance.
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A council could be a public officer for the purposes of the tort1
Tort can be constituted by omissions as well as by actions2
There is no need for plaintiff to establish that they are a member of any specific ‘class’ of the
public.3
a) An Invalid or Unauthorised Act
This will cover situation where law is broke directly, eg a police officer exceeding powers of
arrest, trespassing without authority; public servant openly making decision beyond their power.
In some cases, other tort actions may be available, misfeasance in public office might be useful if
the officer is protected against those torts for some other reason.
2 different types of action which may ground tort- actual illegality, and also ‘target’ malice. This
was recognised recently by Full Court of Federal Court in Nyoni v Shire of Kellerberrin [2017]
FCAFC 59 (13 April 2017), at [93]:
Lord Steyn recognised that there are two distinct ways in which the tort of misfeasance in public
office may be committed. First, targeted malice, namely where the public officer engages in
conduct that is specifically intended to injure a person or persons. In a case of targeted malice
there is bad faith in the sense that the exercise of public power is done for an improper or ulterior
motive. Secondly, the public officer acts knowing that there is no power to do the act complained
of and that that act will probably injure the plaintiff (or applicant). In such a case, the public
officer acts in bad faith because the officer does not have an honest belief that the act complained
of is lawful: Three Rivers [2003] 2 AC at 191E-F
Successful action based on illegality:
1. State of South Australia v Lampard-Trevorrow [2010] SASC 56:
Discussed previously in relation to false imprisonment, based on stolen generations.
Action for MPO based on fact that Aborigines Protection Board had previously received
advice from Crown Solicitor that their actions in removing ATSI children from parents
without proper notice or hearing (as with Mr Trevorrow) was in fact unlawful.
Hence, once ‘malice’ element was established, this was a case where damage for
misfeasance was awarded
Decision on this point upheld on appeal.
2. Habib v Cth of Australia [2010] FCAFC 12:
Mr Habib took action for MPO against Commonwealth for its complicity in what he
alleged where acts of torture carried out overseas by foreign officials.
1 [38] of Neilson & Anor v City of Swan [2006] WASCA 94
2 Ibid, [42]
3 Ibid, [66]
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Cth argued that an Australian Court could not act on allegations of unlawfulness of
actions of agents in foreign states (as applied in Petrotimor Companhia de Petroleos
SARL v Cth (2003) 126 FCR 354.
Full court, however, ruled that there is exception to doctrine where what is alleged is
contrary to universally accepted international norm (conventions prohibiting torture)
and where that norm has been enacted in Australia with extra-territorial effect (Crime
(Torture) Act 1988 (Cth).
In cases where action is technically valid, or within a wide discretion, there could still be
an action for MPO if action was done with malice, as defined below:
Sunraysia Natural Beverage Co Pty Ltd v NSW [2003] NSWSC 190: Sunraysia was suing State
of NSW for misfeasance in public office based on actions of an officer of Department of
Health, who sent letter to supermarkets warning that Sunraysia was in breach of the Food
Act 1989.
Court held at first instance an action was not available as the Department clearly
had legal authority to issue warning.
On appeal, on Sunraysia Natural Beverage Co Pty Ltd v NSW [2004] NSWCA 16,
Court of Appeal disagreed; action would possibly be available where Department’s
actions, though lawful, were undertaken with malice, and hence the claim should be
allowed to proceed to trial; per Handley JA:
[5]…It seems to be established both in Australia and in England that there are
two limbs to this tort. It is sufficient for present purposes to refer to what Lord
Millett said in Three Rivers District Council v Governor and Company of the
Bank of England (No 3) [2003] 2 AC 1, 235 with reference to the first limb:
“The first limb, traditionally described as “targeted malice”, covers the case
where the official acts with intent to harm the plaintiff or a class of which the
plaintiff is a member … In my view the two limbs are merely different ways in
which the necessary element of intention is established. In the first limb it is
established by evidence; in the second inference.
The rationale underlying the first limb is straightforward. Every power granted
to a public official is granted for a public purpose. For him to exercise it for his
own private purposes, whether out of spite, malice, revenge, or merely self-
advancement, is an abuse of the power. It is immaterial in such a case whether
the official exceeds his powers or acts according to the letter of the power ...
His deliberate use of the power of his office to injure the plaintiff takes his
conduct outside the power, constitutes an abuse of the power, and satisfies any
possible requirements of proximity and causation.”
Targeted Malice:
1. Cornwall v Rowan [2004] SASC 384:
Minister for Community Welfare in SA (Cornwall) included “unsubstantiated
allegations” in a parliamentary inquiry stating claims of sexual assault and
harassment coupled with financial problems were essentially carried out by shelter
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Document Summary
Misfeasance in public office is a tort that aims to protect the interest not to be injured by government officials mis-using their powers. this is a substantive intentional minor tort. Northern territory of australia v mengel (1996) 185 clr 307. Position of the defendant (iii) public officer (1) public officer . Characterisation of the way the defendant has acted (iv) in the purported discharge of his or her public duties (2) exercised power as a public officer . Legal validity of the exercise of (i) an invalid or unauthorised (3) (a) targeted malice - ie power act. The officer knows or is reckless as to the fact that the act is beyond power, and the act will foreseeably harm the plaintiff. Result of act (v) causes loss or harm to (4) damage is caused to plaintiff plaintiff which is not too remote. As evident, uk and aus much alike- though we use deane j.
