Although misfeasance in public office had been recognised and applied occasionally by

State Supreme Courts it was not until 1995 that it was first considered by the High Court of

spent a considerable amount of time dealing with a variety of issues concerning this tort, in

discussion in those cases, in none of them was the defendant found to have committed the

tort; in each case, the respective courts were dealing with matters of principle, rather than

considering how those principles might apply to a particular set of facts.

In the light both of the fact that this tort has had only a relatively brief exposure to judicial

consideration, and that such exposure is relatively recent, it is not surprising that there are

some aspects of liability that have not been fully developed. It is my purpose in this paper to

consider more fully two of the areas where some doubt remains: (a) the circumstances in

which an employer may be vicariously liable for the commission of this tort; and (b) whether

such vicarious liability extends to a liability to pay exemplary damages.

The reason for considering these two aspects of the tort is that this head of liability is one

those who owe duties to members of the public, and who exercise those powers and

functions for the benefit of the public. Hence, the rationale for this liability has been put on

the basis that in a legal system based on the rule of law, executive and administrative power

must be exercised for the public good, and not for an ulterior or improper purpose.6

However, it is my submission that an employer of such a public officer is likely to be

vicariously liable only in limited circumstances, and that such vicarious liability does not

extend to the awarding of exemplary damages, with the result that many who have suffered

loss by some act of maladministration will be deterred from taking proceedings, as they

might find that the public officer who is solely liable does not have the resources to provide

the compensation or other damages which have been awarded.

The tort of misfeasance in public office permits an individual to recover for the loss or

damage suffered consequent upon action taken by the holder of a public office, if the officer

acted maliciously or knew that the action was beyond power and was likely to harm the

plaintiff. The action is not confined to positive conduct by the defendant, but includes a

deliberate failure to fulfil a public duty cast upon him or her.

It must be stressed that this action requires, as one element, some form of intention to cause

harm to the plaintiff. It has been argued on occasion that one who suffers financial harm as

the direct consequence of administrative action which turns out to be invalid may recover

that loss by an action in tort, but that argument has been steadfastly rejected.7 No action lies

against a public officer who causes loss by reason of an act which is later found to be

without force, so long as the officer acted in good faith and without knowledge of the invalidity.8

Each of the elements of liability need to be considered in turn. However, before undertaking

that consideration, it is useful to consider a relatively recent case, in which the action was

successful, in order to get an overall view of liability under this tort.

therefore, an excellent vehicle to introduce a discussion of this form of liability. Ms Grey was

a single mother of four children who had accrued some $400 of parking fines but, being

unable to pay that amount, a warrant was issued for her arrest and imprisonment. The

warrant was executed by WPC Pike, who took Ms Gray to the Narre Warren Police Station,

WPC Pike carried out this procedure, assisted by a probationary woman

constable. Sgt De Reus gave no reason for this search, and Ms Gray said nothing in

response to the order for her to be strip-searched, because she thought that if she resisted

she would be forced to comply.

The search involved Ms Gray being asked to remove all her clothes, which she did. While

the clothes were being searched, she was not given any alternative clothing. Furthermore,

the search took place, not in a cell or enclosed room, but at the end of a corridor, adjacent to

a cell which Ms Gray thought (apparently incorrectly) had some sort of two-way mirror in the

door, through which she could be observed. In all, Ms Gray was detained for some three to

four hours before being released. On the following morning she returned to the Police

Station to do two hours community work, in expiation of her parking fines. She sued for

damages for assault and negligence, as well as for misfeasance in public office. She

succeeded in all three causes of action.

To summarise the elements of the action for misfeasance in public office considered more

fully below, the Court accepted that Sgt De Reus was the holder of a public office for these

purposes, and the jury found that he either knew that he was not authorised to conduct a

strip-search in these circumstances, or recklessly disregarded the means of ascertaining

whether he had that power, and that his conduct was likely to cause harm to Ms Gray.

As already mentioned, this tort is capable of being committed only by a person or body who

fulfils some public function, but the precise circumstances in which a defendant may come

within the ambit of the wrong have yet to be authoritatively determined. One can do little

more than provide some examples of those who come either within, or outside, this concept.

A public officer includes government employees undertaking duties for the purpose of

eradicating diseases in stock,10 a Minister of the Crown either when deciding to withdraw

carrying out coercive duties15 or investigating alleged criminal activity.16 However, the chief

executive officer of a government department is not regarded as the holder of a public office

for these purposes when exercising managerial functions in relation to the staff of the

department.17 The same is true of counsel briefed to prosecute for the Crown and an

instructing solicitor, because neither, in the course of performing their duties, exercises any

power which might be misused.18 So too a subordinate officer of a government department

whose task is to prepare a report on the conduct of a fellow officer is not a public officer for these purposes.19

A body corporate is just as capable of committing this tort as an individual. So, a statutory

corporation has accepted that it may be liable, if the other elements of the tort were to be

proved,20 and a State, acting through its Ministers, its emanations and its officers has been

held liable.21 The same has been held to be true for a local body when exercising a public

its insurance business, is not a public officer for these purposes, as its operations are commercial, not governmental.23

group may be difficult, but certainly not impossible.24 Indeed, it appears that, when a local

body is purporting to carry out a power which is for the benefit of the borough or municipality

as a whole, it is irrelevant that in the particular instance the power is derived from a lease rather than from legislation.25

The second element of this tort which the plaintiff must prove is that the defendant acted in

bad faith. This may be established in either of two ways.26 First, that the defendant was

motivated by a purpose quite foreign to that for which the public power or duty had been

bestowed, and that the impugned conduct was undertaken with the intention of harming the

demonstrated if the acts or omissions complained of were undertaken in the knowledge that

they were beyond power28 or with reckless disregard of that fact, and were likely to harm the

plaintiff.29 A matter which has not yet been conclusively determined is the extent to which a

defendant who acts in conscious disregard of his or her authority must direct the acts to

harming the plaintiff. Despite some judicial observations which may suggest otherwise,30 it is

not sufficient that the defendant merely knows that he or she has acted beyond power and

that damage has consequently been caused to the plaintiff.31 The High Court of Australia, in

have been carried out with the intention of harming the plaintiff or with reckless indifference

that the public officer actually knew of the consequences for the plaintiff of the disregard of

duty, or was recklessly indifferent to those consequences. Subsequently, the House of

Zealand Court of Appeal that it is necessary for the plaintiff to show that the defendant has

acted in the knowledge that his or her act would probably injure the plaintiff.36 More recently,

the Supreme Court of Canada adopted the same approach as these latter two courts, saying

Honour concluded39 that the State, through its Ministers, the members of the Aborigines

Protection Board and other officers, knew that it was unlawful to remove the plaintiff, a 13

month old Aboriginal child, from his natural family, and place him with a non-indigenous

family for long-term fostering, and thus fulfilled the first aspect of liability. But in dealing with

the intentions of those who authorised that removal, his Honour said that they either foresaw

is not clear that there was a finding of either an intention to harm the plaintiff or reckless

indifference to whether harm would ensue.

This tort is derived from the action on the case, with the result that the plaintiff must show

that loss or damage has been suffered. Hence when a prisoner complained that prison

officers had wrongfully opened his correspondence with his legal advisers, the House of

Lords held that, although the officers had acted beyond power and in bad faith, the plaintiff

could not show that he had suffered material damage and hence his claim was dismissed.41

The damage which is the gist of the action may assume a variety of different forms; it

the injury is physical42 or psychological43 - or on his or her property44 or reputation.45 Thus a

person may sue for the revocation of a licence to sell alcohol46 or to pilot a ship47 or to import

turkeys.48 The action also lies for damage resulting from striking a dentist off the register of

practitioners,49 forcing the closure of an hotel,50 refusing to acknowledge the legality of a tax

minimisation scheme,51 or denying consent to a change of use of land.52

A plaintiff who seeks redress under this tort, and brings the proceedings against the

employer of the perpetrator, faces a number of difficulties in seeking to impose vicarious

liability on the employer. First, if the public officer who is alleged to have committed the tort is

employed by, or in the service of, the Crown, the latter will not be vicariously liable if the

tortfeasor, in the course of committing the acts or omissions which constitute the relevant

tort, was carrying out an independent duty cast upon him or her by the law. However, this

rule has been abrogated with respect to the conduct of police officers. In all jurisdictions in

Australia, and in New Zealand, police officers may render the Crown vicariously liable for

torts committed by them in the exercise, or purported exercise, of their duty.

Another difficulty which a plaintiff faces, even if the tortfeasor was not exercising an

independent discretion, is that vicarious liability still requires that the employee be acting in

the course of employment in order to fix the employer with liability. But this tort is committed

only when the employee is either using his or her position for a purpose quite foreign to that

for which it had been bestowed, or is acting in conscious disregard of his or her lack of

comes within the course of employment for these purposes may each be considered in turn.

This rule is based on the rather dubious notion that a public employee who is obeying the

authority of an Act of Parliament is not at that time subject to the control of the employer, and

thus liability ought not to be imposed on that employer.53 These comments were made at a

time when the general immunity of the Crown had only recently been removed,54 and it is

understandable that a degree of caution was exercised in re-imposing liability on to the

Crown. More recently, the rule has come under sustained criticism,55 since it transfers the

putting the liability on the Crown, where it could be readily absorbed. In view of such

comments, it is not surprising that this anomalous rule has been abrogated completely in

New South Wales,56 South Australia57 and New Zealand,58 and proposed for abolition in

Victoria,59 Queensland60 and with respect to the Crown in right of the Commonwealth,61

although none of those proposals has yet been implemented.

In those jurisdictions where it has not been abrogated, the rule has been applied to negative

vicarious liability in the case of magistrates,62 legal aid officers,63 Crown prosecutors,64

collectors of customs,65 the Commissioner of Taxation66 and the former Director of Native

Affairs in the Northern Territory67 but has not been applied to school teachers68 nor to such

statutory office-holders as the Comptroller-General of Prisons69 or the Director of Community

Welfare.70 The exception may also apply to a Minister of the Crown in the conduct of his or her portfolio.71

At common law, the above “independent duty” rule applied to police officers while carrying

out functions special to their appointment.72 However, in all Australian jurisdictions that rule

has been abrogated by statute, and the Crown is vicariously liable for torts committed by

police officers in the exercise or purported exercise of their duty.73

The legislation for the Commonwealth and Queensland treats the Crown, for all purposes, as

a joint tortfeasor with the police officer.74

The legislation in the other jurisdictions provides that if a police officer is alleged to have

committed a tort, he or she does not incur any civil liability, and that such liability attaches

instead to the State or Territory. However, in all jurisdictions other than New South Wales,

As a matter of statutory interpretation, this limitation renders it unlikely that the Crown would

be vicariously liable for a police officer who had committed the tort of misfeasance in public

must prove that [the defendant’s] conduct was otherwise than an honest attempt to perform

award of exemplary damages must necessarily be the antithesis of conduct for which the

legislation provides immunity.

the State was joined with the police officers as a defendant, Winneke P noted that

admissions were made by the State “of the relevant facts necessary to transfer to the State

any liability incurred by the two police officers … in accordance with [the relevant legislation].”

Vicarious liability is established by showing that the alleged tortfeasor (a) is an employee of

the defendant; and (b) committed the tort in the course of that employment.82 Assuming that

a tortfeasor is, for these purposes, an employee, because he or she is not regarded as

exercising an independent duty, it is still necessary to show that the impugned conduct is

within the course of employment. Although authority is sparse, it is my contention that the

courts in Australia would be unlikely to find that an employee who commits this tort fulfils this requirement.

The only High Court comment directly in point is that made by the majority of that Court, in

liable personally and, unless there is de facto authority, there will ordinarily only be personal

liable unless it had authorised the conduct, at least impliedly, an authorisation which would

be difficult to establish.85 The House of Lords appears to be more ready to find vicarious

shown to have been engaged in a misguided and unauthorised method of performing their

authorised duties, that might be sufficient to impose vicarious liability on the respondent.87 It

might, however, be argued that if the prison officers’ lack of authority were “misguided”, they

would be unlikely to have the necessary knowledge of, or reckless indifference to, that fact,

and therefore not be liable in any event.

Of course, the whole matter of vicarious liability for deliberate conduct has been considered

various judgments in that case are not easy to state, and do not appear to support a finding

of vicarious liability for a tort such as misfeasance in public office. Thus, Gleeson CJ89 and

Kirby J90 were of the view that vicarious liability might be imposed if there is a sufficiently

was engaged to perform. But misfeasance in public office is committed when the tortfeasor

is either knowingly going beyond what he or she is authorised to do, and acting in such a

way as to be likely to harm the plaintiff, or is motivated by a purpose which is quite foreign to

that for which the power or duty has been bestowed. In either case, it is submitted, any

connection between that conduct and that for which the employee was engaged is no more

than temporal. Similarly, while Gummow and Hayne JJ91 were prepared to allow vicarious

liability for some intentional torts of an employee, their Honours considered that such liability

It is suggested that the commission of the tort of misfeasance in public office does not come

within either of those kinds of case.

Since the tort of misfeasance in public office is founded on the ill-will of the defendant, it is

one which is peculiarly appropriate for the award of exemplary damages. But the purposes

of awarding exemplary damages have been variously described as imposing punishment on

order to prevent him or her from reaping a gain from the wrongdoing, assuaging any feelings

on the part of the plaintiff to seek revenge for the hurt done, and marking the condemnation

employer whose only connection with the commission of the tort is the fact of employing the tortfeasor.

In the light of my submission above, that an individual who commits the tort of misfeasance

in public office is unlikely to render his or her employer vicariously liable, it might be thought

that any discussion of vicarious liability for exemplary damages is unnecessary. If the

employer is not vicariously liable for compensatory damages, I can see no basis for such an

employer being liable for exemplary damages. However, I am prepared to concede that that

submission as to vicarious liability for compensatory damages may not be correct. If that is

the case, and if an employer is vicariously liable for compensatory damages, I submit that

there are two bases at least for arguing that such an employer would also be liable for any

exemplary damages that may be awarded.

Before considering those two bases for the award of exemplary damages against an

employer, it is necessary to refer briefly to the legislation mentioned above, which renders

governments liable for the torts of police officers.

Of the legislation discussed above which renders a government liable for the torts of a police

officer, four jurisdictions expressly proscribe that liability extending to the payment of

exemplary damages.

one liable to pay such damages. In Western Australia, where the Crown is liable, instead of

the police officer, for damages arising from the officer’s tortious conduct, if done “without

vicarious liability on the Territory for the conduct of police officers, that liability does not

extend to one to pay exemplary or punitive damages.96 In both of the two last-named

jurisdictions, the individual police officer remains liable for exemplary damages.

Despite these provisions, it can scarcely be said that there is any national legislative policy

against rendering a government liable for exemplary damages based solely on the conduct

a police officer,97 it will also be liable for such exemplary damages as may be awarded.98

Assuming that the tortfeasor who has committed misfeasance in public office is not

exercising an independent duty, and therefore may render his or her employer vicariously

liable, and assuming further that, despite having either knowingly gone beyond what he or

she is authorised to do, and acting in such a way as to be likely to harm the plaintiff, or being

motivated by a purpose which is quite foreign to that for which the power or duty has been

bestowed, the tortfeasor is nevertheless found to have rendered his or her employer

vicariously liable for any compensatory damages, the question remains whether such

conduct may render the employer also vicariously liable for exemplary damages.

support an employer’s vicarious liability for exemplary damages.

Police officers had trespassed on Mrs Ibbett’s property, and in her action against the State

she was awarded exemplary, as well as compensatory, damages in the District Court, an

award which was upheld by the Court of Appeal. The State appealed to the High Court, one

of its arguments being that it was wrong in principle to “fix the State with vicarious liability for

the conduct of persons who are not before the court, who have not been identified, whose

conduct is not the subject of allegations in the pleadings, whose conduct has not been

awarded against the State for the conduct of police officers

liable for exemplary damages awarded to a plaintiff who had succeeded in an action for

assault, false imprisonment and malicious prosecution.

that an award of exemplary damages against the Crown as an employer serves the useful

purpose of bringing it home to senior officers in a position of control within the Public Service

that conduct meriting the award of such damages by junior officers in public employment will

not be tolerated, and that the senior officers must maintain discipline and proper behaviour at all times.

depends upon identifying the theory by which vicarious liability is imposed in any particular situation.

second, a theory of strict liability, would impute to the employer the wrong which the

JJ108 supported the first of these theories, Fullagar J109supported the second.

The second theory is now settled law in England110 and, it is suggested, in Australia.

an employer “is only liable for the acts or omissions of an employee if the employee would

In that case, if an employee has committed the tort of misfeasance in public office in such

circumstances as to merit the plaintiff being awarded exemplary damages, and if, further,

that tort was committed in the course of employment, there is no difficulty in saying that

since the wrong of the employee merited the award of both compensatory and exemplary

damages, that wrong, and the concomitant liability for damages, is transferred to the

employer by the operation of the doctrine of vicarious liability. Furthermore, an award of

exemplary damages made against an employer would meet many of the purposes of such

an award.114 It would assuage any feelings on the part of the plaintiff for revenge, it would

mark the condemnation of the court for the conduct complained of and, as mentioned above,

it would fulfil the deterrent purpose by seeking to ensure that senior officers in an

organisation maintain discipline and proper behaviour at all times.

been in “bad faith”) takes him or her out of the protection of the legislation relating

to police officers (in SA, Tas, Vic, WA and NT).

Queensland, Western Australia or the Northern Territory applies.