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Misfeasance in public office

MM Constructions (Aust) PL and Anor v Port Stephens Council (No. 6) [2011] NSWSC 1613. Johnson J.

Misfeasance in Public Office
212 The tort of misfeasance in public office is well established, but in important respects, it has been said that the precise limits of the tort remain undefined: Northern Territory of Australia v Mengel [1995] HCA 65; 185 CLR 307 at 345; Leerdam v Noori [2009] NSWCA 90; 255 ALR 553 at 574 [99].

213 Misfeasance in public office is a deliberate tort: Mengel at 345; Pharm-a-Care Laboratories Pty Limited v Commonwealth of Australia (No. 3) [2010] FCA 361; 267 ALR 494 at 508-509 [58]-[59].

In Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 at 376 [124], Gummow J observed that "misfeasance in public office concerns conscious maladministration rather than careless maladministration" .

214 In Sanders v Snell [1998] HCA 64; 196 CLR 329 at 346-347 [42], Gleeson CJ et al emphasised it is an intentional tort.

215 In Mengel, Deane J, at 370-371, identified the elements of the tort in the following way (footnotes excluded):

"Its elements are:

(i) an invalid or unauthorized act;

(ii) done maliciously;

(iii) by a public officer;

(iv) in the purported discharge of his or her public duties;

(v) which causes loss or harm to the plaintiff.

"That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case.

"The critical element for present purposes is malice.

"In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff.

"Such malice will exist if the act was done with an actual intention to cause such injury.

"The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury.

"Finally, malice will exist if the act is done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury.

"Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied."

216 What has been described as the malice requirement of the tort has been divided into "targeted malice" and "untargeted malice" : Sappideen and Vines Editors, Fleming's The Law of Torts, 10 th edn, 2011, page 715; Aronson, Misfeasance in Public Office: A Very Peculiar Tort (2011) 35 Melbourne University Law Review 1 at 12, 18-25.

217 In Rush v Commissioner of Police [2006] FCA 12; 150 FCR 165 at 197-198 [121], Finn J observed:

"It is unnecessary for present purposes to discuss the elements of this tort in any detail. They were recently essayed by the Full Court of this Court in Sanders v Snell (No 2) (2003) 130 FCR 149. I would note, though, that the tort can take two forms.

In one form (that of "targeted malice") it must be shown that the public officer in question has acted as such with an actual intent to cause injury to a person or persons.

In its alternate form it must be shown either that the officer has actual knowledge both that his or her action was beyond power and would cause or be likely to cause injury or else that the officer has acted with reckless indifference both to the possibility his or her action was beyond power and to the possibility that that action would cause or be likely to cause injury: see generally Sanders v Snell (No 2) at [95]-[100]."

218 It has been said that there is no requirement that a person act with spite or ill will as an ingredient of the tort.

Rather, there are two ways in which the requisite state of mind can be established.

The first is by proving that the defendant acted with the intention of harming the plaintiff.

The second state of mind is where the defendant has knowledge that his or her actions are unlawful and that they will probably cause loss to the plaintiff: Trindade, Cane and Lunney, The Law of Torts in Australia , 4th edn, 2008, paragraph 6.10.2. Mr Toomey QC, in his closing address in reply, emphasised that the Plaintiffs' claim asserted the first of these options (T1097).


233. It is the Plaintiffs' case, on the claim for misfeasance in public office, that Ms Gale's acts and omissions were done with the intention of causing harm to the Plaintiffs (T1058.32).

Although it is not an ingredient of the tort to establish a motive for intending to cause harm to the Plaintiffs, it is nevertheless pertinent to the fact-finding process to ask what motive Ms Gale might have for intending harm to Mr Maruncic and his company.

As in a criminal trial, where motive is not an element to be proved by the Crown, the presence or absence of motive, or the nature of any motive, may bear upon a determination as to whether the moving party has proved its caseDe Gruchy v The Queen [2002] HCA 33; 211 CLR 85 at 92-93 [28]-[32]R v Vjestica [2008] VSCA 47; 182 A Crim R 350 at 382-383 [112]-[115].


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