Australia: Public misfeasance: What has intent got to do with it? (Part 1)

Misfeasance in public office is an uncommon tort. Historically, so long as a public officer acted within the scope of their authority, the intention behind enforcing a regulation would not be considered by a court in a claim for public misfeasance.

In a recent decision by the Full Federal Court,1 however, uncertainty has arisen as to whether the authorised enforcement of a regulation by a public officer, done in a malicious way, could in fact be considered a tort and potentially lead to a claim for damages.

The question of a public officer's intent when enforcing a regulation has now been referred to the High Court for its consideration.

The circumstances resulting in the claim of public misfeasance

The proprietor of a pharmacy in the small town of Kellerberrin in the Wheatbelt of Western Australia, Mr Nyoni, alleged that a public officer at the Shire of Kellerberrin (Shire) engaged in a number of actions. These included passing on (albeit unknowingly at the time) misleading information concerning Mr Nyoni's business practices to various pharmaceutical regulatory authorities, which were designed to be unfavourable to the business interests of Mr Nyoni and harm his reputation.2

Mr Nyoni issued proceedings in the Federal Court seeking damages from the Shire on the basis that the public officer's actions were malicious amounting to public misfeasance. The decisions

In the Federal Court decision of Nyoni v Shire of Kellerberrin,3 his Honour Justice Siopis held that a public officer who performs an action (whether unknowingly based on incorrect information or otherwise) which causes detriment to an individual's reputation or business cannot be considered to have committed misfeasance in public office, so long as the public officer was acting within their authorised powers.

Furthermore, if the public officer's action did not go beyond the public power of that office or was used with proper legal authority it would still not be considered public misfeasance, even the action was performed maliciously or with dubious intent.4 In other words, his Honour Justice Siopis set a high benchmark before the actions of a public officer could be considered public misfeasance.

His Honour Justice Siopis's decision was appealed to the Full Federal Court, where their Honours Justices North, Dowsett and Rares took a different approach to the malicious, but authorised, actions of a public officer.5 Their Honours held that a public officer who targeted their malice in such a way that their actions intentionally caused injury to an individual, would be considered misfeasance in public office, regardless of whether the action was within the scope of their authorised powers.

In Mr Nyoni's circumstances, their Honours held that the public officer's passing on of misleading information to the regulators was done with the intent to cause Mr Nyoni to cease operating his pharmacy and that the making of such an allegation would cause sufficient material or actual damage to him. Accordingly, their Honours found that the individual public officer and the Shire, had both committed the tort of public misfeasance. They awarded damages, thus lowering the high benchmark previously set by His Honour Justice Siopis.6

Given the contentious nature of the differing findings of the Federal Court and the Full Federal Court, the Shire has sought special leave from the High Court to appeal the Full Federal Court's decision. The special leave application will be heard in early 2018 and if successful, will be heard before the full bench of the High Court.

What is the High Court to decide?

Should the special leave application be granted, the High Court will be asked to consider whether the intent of a public officer, whilst acting within the scope of their powers, can commit the tort of public misfeasance.

A simple example can be described by the actions of a parking inspector (i.e. the public officer).

Imagine that a parking inspector has an acrimonious relationship with his or her neighbour. If that inspector was to issue an infringement notice to his or her neighbour for legally parking their car, the inspector would have committed misfeasance in public office, because the inspector would have engaged in an action that was beyond the scope of his authority. However, if the neighbour parks illegally and is issued an infringement notice, could that be considered public misfeasance due to their history and relationship?

The parking inspector has authority to issue infringement notices to anyone in breach of parking regulations. What if the inspector had followed the neighbour from parking spot to parking spot, maliciously waiting for a chance to issue an infringement notice at the first opportunity his neighbour was in breach of a parking regulation? While there is no doubt as to breach, should the neighbour be able to avoid a breach of a regulation or law simply due to the vindictive attention of the parking inspector?

In simple terms, the High Court has been asked to decide whether the intent of a public officer, when executing their authorised powers, is sufficient to set aside any breach of a regulation or law committed by an individual.

What's next?

Both the Shire and Mr Nyoni will make written and oral submissions for the High Court to consider in relation to the special leave application to appeal the Full Federal Court's decision.

The result of that decision will form Part 2 of this series.

To be continued...


1 Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294.

2 Ibid. at [18].

3 Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294.

4 Ibid. at [360].

5 Nyoni v Shire of Kellerberrin [2017] FCAFC 59.

6Ibid at [101] – [102].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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