Australia: NSW Government Bulletin - 18 April 2018: Part 1: Tort of misfeasance in public office

Last Updated: 26 April 2018
Article by Kim Nguyen and Hannah McGuire
Most Read Contributor in Australia, September 2018

What is the tort of misfeasance in public office?

The tort of misfeasance in public office is a legal wrong where in essence, a public officer has misconducted themselves by misusing or abusing powers conferred on them for the purpose of their public duties. It has also been described as where someone holding public office has misconducted themselves by purporting to exercise powers not conferred on them with the intent to injure others or in the knowledge they were acting outside the scope of power.

Key issue

The key issue in the appeal was whether the respondents, two ICAC investigators, were 'public officers' for the purpose of proving the tort of misfeasance in public office.

The respondents were ICAC staff members who participated in the execution of a search warrant of premises occupied by a company associated with the appellants. The execution of the search warrant was video recorded. Two documents said to be outside the scope of the search warrant were not seized however their contents were recorded on video. One of the documents was tendered in redacted form during an ICAC public inquiry and Moses Obeid was cross-examined on it. The appellants claimed to have suffered harm by reason of the publication of an article in the Sydney Morning Herald following Moses Obeid's cross-examination.

It was claimed by the appellants that the respondents lacked power under the warrant to record the two documents on video, that they were aware of or recklessly indifferent to the absence of their power and to a risk that the Obeid parties would suffer loss.

Who is a 'public officer'?

At first instance, the primary Judge found that the respondents were not public officers for the purposes of the tort of misfeasance because the respondents' authority to execute the search warrant stemmed from their naming in the warrant itself, not from any position they occupied in ICAC.

The Court of Appeal explored numerous Australian and British authorities on the scope of the definition of 'public officer'. For instance, the Court said a 'public office' would not include all public employees, particularly those with minimal responsibilities but the tort should not be confined to a particular person appointed to a particular statutory office which expressly confers statutory powers and responsibilities.

While it was not appropriate to express a view on the limits of who is and isn't a public officer for the purposes of the tort, the Court held a 'public officer' includes persons who, by virtue of the position they hold, are entitled to exercise powers in the public interest.

The Court ultimately found that the respondents were 'public officers' for the purposes of the tort of misfeasance as the respondents were members of staff of ICAC appointed under s104(1) of the ICAC Act and were designated as holding the position of 'senior investigators' with the powers assigned to that position by the ICAC Act. The Court found that the respondents were acting in this capacity while executing the search warrant and were exercising public power in doing so.

The tort of misfeasance is otherwise not made out

The Court dismissed the appeal on the bases including that:

  • that any reputational harm caused to the appellants due to the publication of an article in the Sydney Morning Herald was not reasonably foreseeable to the respondents
  • any loss to the appellants was not actually caused by the respondents (for instance, one of the documents was tendered in a public ICAC inquiry)
  • the appellants did not prove that the respondents were either aware of or recklessly indifferent to the fact that the appellants were likely to suffer harm.

This is an important decision in the tort of misfeasance in public office and we will provide an update if the decision is appealed in the High Court.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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