The Tort of Misfeanance in Public Office

In the Tort of Misfeasance in Public Office the following needs to be proven.

Firstly the plaintiff must prove that the defendant is a “public officer”.

Secondly the plaintiff must also prove that the defendant acted in the exercise or purported exercise of his office . This requires a positive act, or an act of omission.

The power must have a statutory or public origin.

Thirdly the plaintiff must further prove that the defendant acted with malice towards the plaintiff  or with knowledge that he or she was acting invalidly. In the former case the official is exercising power that they actually possess but for improper purpose ; in the latter, they are knowingly exceeding their authority or power.

Lastly, the plaintiff must prove that the plaintiff or plaintiffs suffered damage as a result of the defendant’s conduct . 

The Third Element

The third requirement concerns the state of mind of the defendant. The case law reveals two different forms of liability for misfeasance in public office.

First there is the case of targeted malice by a public officer that is, conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of a public power for an improper or ulterior motive.

The second from is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.

The official concerned must be shown not to have had an honest belief that he was acting lawfully. This is sometimes referred to as not having acted in good faith.  In Northern Territory v Mengel [1995] HCA 65 , the expression “honest attempt” was used.

Another way of putting it is that he or she must be shown either to have known that he was acting unlawfully or having wilful disregarded the risk that his act was unlawful. This requirement is therefore one which applies to the state of mind of the official concerning the lawfulness of his act and covers both a conscious and a subjectively reckless state of mind, either of which could be described as bath faith or dishonest.

The relevant act or omission must be unlawful. This may arise from a straightforward breach of relevant statutory provisions or form acting in excess of the powers granted or for an improper purpose.

Targeted Malice

Here the official does the act intentionally with the purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable. The specific purpose of causing loss to a particular person is extremely likely to be consistent only with the official not having an honest belief that he was exercising the relevant power lawfully.

Untargeted Malice

Here the official does the act intentionally, being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs. (eg members and beneficiaries of a Trust). The element of knowledge is the actual awareness but is not the knowledge of an existing fact or inevitable certainty. It relates to a result which is yet to occur. It is the awareness that a certain consequence will follow as a result of the act unless, something out of the ordinary intervenes. The act is not done with the intention or purpose of causing such a loss but is an unlawful act which is intentionally done for a different purpose notwithstanding that the official is aware that such injury will, in the ordinary course, be one of the consequences.)

 Reckless Untargeted Malice

The official does the act intentionally being aware that it risks directly causing loss to the plaintiff, or an identifiable class to which the plaintiff belongs, and the official wilfully disregards that risk. What the official here is aware is that there is a risk of loss involved in the intended act. His recklessness arises because he chose wilfully to disregard that risk. “intentionally” relates to the doing of the act and covers a similar point to that referred to earlier in relation to acts and omissions. It indicates that the mind must go with the act. It does not require any specific intent (except as so far as having a specific purpose under the first limb imports an intent.

Bad Faith (Untargeted Malice or Reckless Untargeted Malice)

The required mental element is satisfied where the act or omission was done or made intentionally by the public officer;

(a)    In the knowledge that it was beyond his powers and that it would probably cause the plaintiff to suffer injury (Simple  untargeted malice), or

(b)   Reckless because, although he was aware that there was a serious risk that the plaintiff would suffer loss due to an act or omission which he knew was unlawful, he wilfully chose to disregard that risk (reckless untargeted malice)


In regard to this form of the Tort, the fact that the act or omission is done or made without an honest belief that it is lawful is sufficient to satisfy the requirement of bad faith.

In regard to alternative (a), bad faith is demonstrated by knowledge of probable loss on the part of the public officer. In regard to alternative (b), it is demonstrated by recklessness on his part in disregarding the risk.

The Australian High Court and the Court of Appeal of New Zealand have ruled that recklessness is sufficient {Northern Territory v Mengel [1995] HCA 65}.

Clarke J explained the reason for the inclusion of recklessness:

The reason why recklessness was required as sufficient by all the members of the High Court is perhaps most clearly seen in the judgment of Brennan J. It is that misfeasance consists in the purported exercise of a power otherwise than in an honest attempt to perform the relevant duty. It is that lack of honesty which makes the act an abuse of power”.

Thus a deliberate and vindictive act by a public official, targeted at the plaintiff, is no longer necessary. A knowing breach of duty with the knowledge that harm to the plaintiff is likely, is sufficient, and “knowing” includes acting recklessly in the sense of suspecting the true position and going ahead anyway .

The tabs provide example cases of the Tort of Misfeasance in Public Office.

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