The whole basis of the tort of misfeasance is the exercise or failure to exercise authority by a public officer other than in an honest attempt to perform the functions of his or her office.
The tort’s genesis is in the deliberate abuse of the office in the sense that there is a lack of honest belief that the act or omission is lawful. The act or omission must be improper or done with an improper motive. For the act to be done maliciously there must be an intention to harm or reckless indifference.
A failure to act can be an invalid or unauthorised act but the failure must be deliberate not negligent or inadvertent or arising from a misunderstanding of the legal position. There must be an effective duty known to the official and a conscious decision not to act.
Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ said: ‘Subject to the qualification that there may be cases in which there is liability for harm caused by unlawful acts directed against a plaintiff or the lawful activities in which he or she is engaged, the Beaudesert principle should be overruled.’
Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ
(1995) 185 CLR 307, (1995) 129 ALR 1, (1995) 69 ALJR 527, [1995] Aust Torts Reports 81-335, 25 Queensland Law Society Journal 245, [1995] HCA 65
Australia
Cited by:
Cited – Elliott v Chief Constable of Wiltshire and Others ChD 20-Nov-1996
Vice-Chancellor was asked to consider whether to strike out a statement of claim based upon alleged misfeasance by a police officer in his public office. The allegation against the police officer was that he had deliberately and falsely supplied . .
Lists of cited by and citing cases may be incomplete.
Torts – Other
Updated: 09 November 2021; Ref: scu.669178