9.5 Misfeasance in public office
The tort of misfeasance in public office is concerned with an intentional misuse of public power by a public officer. This tort has been referred to in two recent High Court cases.
The Court has found that for this tort to be established the plaintiff must establish that the act is:
- invalid or unauthorised;
- done maliciously;
- done by a public officer;
- done in the purported discharge of his or her public duties; and
- causes loss to the plaintiff.
The Court has also said that the following actions by a public officer will constitute the tort:
- action taken in excess of power with an intention to cause harm;
- action taken in knowledge that there is no statutory authority and the damage is foreseeable; or
- action done with reckless indifference.
Therefore, mere negligence by a public officer will not suffice unless it amounts to a reckless indifference to the harm that it has caused.
The tort of misfeasance in public office creates a personal liability. The State may not be liable for actions of its officers which amount to misfeasance.
In Queensland there is no general statutory provision which imposes vicarious liability on the Crown for the actions of its employees. The issue of the provision of funding for legal representation and the granting of indemnities to individual public servants is still governed by the general law on adopted policy and procedure.
To ensure against misfeasance in public office, public officers should ensure that they have the requisite power to exercise their authority and may, in some cases wish to seek legal advice on such matters. Public officials should ensure that they are diligently and conscientiously carrying out assigned duties.
Last reviewed: 17 July, 2009
Last updated: 22 July, 2009
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