Misfeasance in Public Office: Some Unfinished Business

18 Pages Posted: 28 Aug 2015 Last revised: 16 Sep 2015

See all articles by Mark Aronson

Mark Aronson

University of New South Wales (UNSW)

Date Written: August 26, 2015

Abstract

Misfeasance in public office is a unique tort. Only public officers can commit it, and only when they are abusing the public power or position. It requires malice in at least one individual within a department or public body, and it is not enough to prove gross incompetence, neglect, or breach of duty. Damage is the gist of the action and compensation is its function, but its rationale is strongly punitive. It has been more than five years since the last of the leading cases from Australia, New Zealand, England and Canada revived the tort, but those cases focused largely on setting the limits of the bad faith element. Many questions still remain. This article revisits the tort's emergence from the shadows, and then looks at some of the thorny questions that remain.

Suggested Citation

Aronson, Mark I., Misfeasance in Public Office: Some Unfinished Business (August 26, 2015). UNSW Law Research Paper No. 2015-55, Available at SSRN: https://ssrn.com/abstract=2652056 or http://dx.doi.org/10.2139/ssrn.2652056

Mark I. Aronson (Contact Author)

University of New South Wales (UNSW) ( email )

Kensington
High St
Sydney, NSW 2052
Australia

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