Misfeasance in public office: a very peculiar tort.

• Jurisdiction: Australia
• Author: Aronson, Mark
• Date: 01 April 2011

[Misfeasance in public office is the common law's only public law tort, because only public officials can commit it, and they must have acted unlawfully in the sense that they exceeded or misused a public power or position. This article examines who might be treated as a public official for these purposes, and whether the tort might extend to government contractors performing public functions. The article also discusses the tort's expansion beyond the familiar administrative law context of abuse of public power, to abuse or misuse of public position. Misfeasance tortfeasors must at the very least have been recklessly indifferent as to whether they were exceeding or abusing their public power or position and thereby risking harm. That parallels the mens rea ingredient of the common law's criminal offence of misconduct in public office, and reflects a further reason for restricting the tort's coverage to public officials, who must always put their self-interest aside and act in the public interest. Upon proof of the tort's fault elements, there beckons a damages vista apparently unconstrained by negligence law's familiar limitations upon claims for purely economic loss. This article questions the capacity of the 'recklessness' requirement to constrain claims for indeterminate sums from an indeterminate number of claimants, some of whom may have been only secondary (or even more remote) victims of the public official's misconduct. Finally, it questions (and finds wanting) the assumption common in Australia that government will not usually be vicariously liable for this tort. It argues that the personal wealth (or otherwise) of a public official should not set the boundary for a truly public tort. The article undertakes a comparative analysis of the law in Australia, New Zealand, England and Canada.]

CONTENTS I Introduction II The Modern Quartet of Leading Cases III Officials Behaving Outrageously: An Introduction IV Malice in Tort and Public Law V The Criminal Offence VI The Mental Elements of the Modern Tort: A Gradual Process of Dilution VII Actions for Breach of Duty: Which Duty? VIII The Limits of Negligence Law IX Rights, Wrongs and Duties X Moral Equivalence and the Variability of 'Recklessness' XI Must the Defendant Be Exercising a Public Function? XII The Defendant Must Be a Public Officer XIII Vicarious Liability Issues: A Public Purse for a Public Tort? XIV Suggestions I INTRODUCTION

Misfeasance in public office is a very peculiar tort. It is generally regarded as the common law's only truly public tort, (1) because the only people who can commit it are those holding public office, (2) and the only occasions on which it can be committed are those in which public office-holders misuse their public power. (3) Because government's tort liability is usually judged by private law principles, there is no generalised common law right of action for damages for loss caused by invalid administrative action. (4) That is an absence that some have lamented, (5) although most have recognised that government liability for invalidity per se would be financially crippling (particularly in light of the rapid expansion of the grounds of invalidity for judicial review), as well as being counterproductive to good administration.

Law reformers have long sought to articulate factors additional to invalidity which might form a coherent and justifiable basis for a new right of action. (6) However, their calls for legislative reform along those lines have failed; indeed the political mood seems to be heading in the opposite direction. (7) Human rights legislation has created a new species of government liability for damages, but these are discretionary, and are assessed according to principles that are usually less generous than tort's aim of replacing the entirety of a loss with a monetary award. (8) Common law developments have been mixed. At least in Australia and England, government liability for negligence seems to be in retreat, although the pace of retreat differs between the two countries, and their courts now have different approaches to the resolution of novel negligence claims.

The misfeasance tort, however, has risen to some prominence in the last 20 or so years. A sequence of four leading cases has sketched its most basic outline. Speaking very generally, misfeasance now offers damages on a tort scale for loss inflicted by public officials guilty of 'conscious maladministration', (9) a concept which catches abuses of power by public officers who either knew they were breaking the law or recklessly decided not to care that this might be so. The judges in each of the four cases nodded to the tort's lengthy antecedents, but they did not proceed as legal historians disinterring an ancient and well-settled doctrine. Nor did they see themselves as law reformers, imposing new duties of care or new standards of administration on government officers. Their implicit premise was the need for a tort that catches some of the things that individuals outside of public office simply cannot do--government officials regulate, license and coerce in ways that often have no private sector analogue nor any court-based remedy aside from judicial review. Explicitly, however, the cases insisted that they were not about to create a whole new compensation right for government incompetence or inertia (which are popularly regarded as the bureaucracy's chief pathologies). They have instead sharpened their focus on those hopefully exceptional cases where officials deliberately take the law into their own hands.

The four leading cases have worked mostly in unison across national boundaries, starting in Australia, and from there to New Zealand, England and Canada in that order. Their sketch of misfeasance was only ever intended as preliminary; its edges are blurred, there are several gaps, and a lot of the detail remains to be filled in. It is therefore an appropriate time to take stock, to speculate on the loose ends so far, and to point to some of the hard choices that must now be made.

There are, of course, more than four leading cases, but this article will start (in Part II) with the quartet of cases that laid the tort's modern foundations, before backtracking to some early history (Part III). It will then investigate the tort's mental elements, starting first with the general place of malice in tort and public law (Part IV), followed by a discussion of the criminal offence of misfeasance (Part V), and the misfeasance tort's recent and potential borrowing from its criminal namesake (Part VI). In a sense, the discussion to that point will have reflected the principal preoccupations of the four modern leading cases, but the article will then turn to other issues. The cases have been at pains to tell us what the tort is not--it is neither an action for breach of duty (Part VII), nor a subset of negligence (Part VIII). Nor is it limited to the provision of compensation for government violation of common law or statutory rights, or at least, not 'rights' in any narrow and legalistic sense (Part IX). It is a tort defined in large part by the state of mind of officials who either knew they were law-breakers or decided not to care about their legal constraints. In the latter case, the decision must have been 'reckless', which is a requirement with considerable potential that is yet to be explored (Part X). Although the cases all treat misfeasance as a purely public law tort, they have yet to define how closely, if at all, it must track the law of judicial review. The remedy is clearly a supplement of sorts to judicial review, but is it confined to powers or duties supervised by judicial review, or can it extend further to deliberate abuse of government's private law powers such as its commercial powers (Part XI)? Must its defendants hold public office, or can they be government contractors exercising public functions (Part XII)? (10) And if misfeasance is indeed a public tort, why do the Australian cases doubt the ability to hold government vicariously liable for the misfeasance of its individual officers (Part XIII)?

II THE MODERN QUARTET OF LEADING CASES

The facts of the four leading cases need only a brief introduction here. Government stock inspectors in Northern Territory v Mengel ('Mengel') (11) had told the heavily indebted Mengels not to take their cattle to market and the law-abiding Mengels had complied. The inspectors suspected (wrongly, as it transpired) that the herd had fallen prey to a particularly virulent stock disease. Both the inspectors and the Mengels had thought that the inspectors were acting validly under a statutory scheme, which empowered them to intervene and impose restrictions on the movement of cattle in the event of a mere 'suspicion' of disease. That scheme, however, had applied only to agreements existing between government and stock owners, and the Mengels' agreement had expired some time ago. There was a statutory power in default of agreement, but it was never used and in any event, it applied only where inspectors 'believed' the stock to be infected, and their suspicions in this instance had not risen to the level of a positive belief. The inspectors had acted beyond their powers, but in good faith, and this was held to be sufficient to exclude liability in misfeasance.

Garrett v Attorney-General (NZ) ('Garrett') (12) was the next leading case of the quartet, this time from the New Zealand Court of Appeal. A police constable had raped the plaintiff, and the constable's sergeant had covered it up until the evidence had gone cold. The sergeant's excuse was that the plaintiff had initially asked that the matter be dealt with unofficially, wanting only for her rapist to be relocated to any place that would be far away from her. The jury appears to have believed the sergeant, which might have raised an interesting question as to whether it is misfeasance to knowingly break the law at the plaintiff's...